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TIEIE 


TRIAL  OF  THE  JUDGMENT. 


REVIEW  OP  THE  ANARCHIST  CASE, 


BY  GEN.  M.  M.  TRUMBULL. 


CHICAGO  : 

HEALTH   AM)  HOME    PUBLISHING  CO. 

1888. 


Copyright,  i8S8, 
By   M.    M.   Trumbuli,, 

All  Riphts  Reserved. 


PREFACE. 


The  pamphlet  entitled  "Was  It  a  Fair  Trial,"  published  just 
before  the  execution  of  the  so-called  anarchists,  had  such  a  wide 
circulation,  and  excited  so  much  interest,  that  after  the  execution  a 
strong  desire  was  expressed  by  many  persons  that  the  pamphlet  be 
enlarged  into  a  review  of  the  whole  case  as  a  test  of  American 
democracy. 

It  was  desired  that  as  the  former  pamphlet  was  written  under 
the  conditions  prevailing  before  the  execution,  in  the  shape  of  an 
appeal  to  the  governor  for  clemency,  this  one  should  be  written 
under  the  conditions  that  prevailed  after  the  execution  in  the  shape 
of  an  appeal  to  the  bar  and  people  of  Illinois  for  a  reversal  of  the 
judgment  and  a  restoration  of  the  law. 

The  awful  tragedy  in  the  Haymarket  was  "worked  "  in  such  an 
ingenious  way  that  the  American  people  were  thrown  into  a  state 
of  terror  as  if  their  government  and  their  constitution  were  made 
of  brittle  glass.  Taking  advantage  of  this  panic,  the  law  was 
strangled  in  the  courts  that  the  accused  anarchists  might  be  stran- 
gled on  the  gallows.  Working  the  people  into  a  nervous  state  of 
mind,  authority  asserted  itself  like  a  king,  and,  borrowing  from  Lord 
Salisbury  his  "  coercion  "  policy  for  Ireland,  adopted  it  in  Chicago, 
with  this  difference,  that  whereas  the  prime  minister  of  England  did 
not  dare  to  enforce  his  policy  without  special  warrant  of  the  legis- 
lature, his  imitators  in  Chicago  enforced  it  without  waiting  for  any 
legal  permission  at  all. 

In  the  trial  of  the  anarchists  a  great  wrong  was  done,  not  only 
to  them  and  their  families,  but  to  all  the  people,  whose  lives,  prop- 
erty and  liberties  can  never  be  safe  where  the  guarantees  of  the 
constitution  are  disregarded  by  the  courts  and  the  right  of  trial  by 
a  fair  and  impartial  jury  is  denied.  That  the  wrong  done  in  the 
anarchist  trial  and  judgment  may  be  righted  as  far  as  possible,  and 
that  a  like  wrong  may  never  again  be  done  in  the  United  States, 
this  review  is  written. 

iM.    M     TRUMBULL. 

Chicas:o,  Februarw  1888. 


THE  TRIAL  OF  THE  JWMENT. 


On  the  nth  of  November,  1887,  four  men  were  hanged  in 
Chicago  under  the  forms  of  law.  They  were  tried  by  a  jury  and 
judgment  of  death  was  jjronounced  against  them.  The  judgment 
was  affirmed  by  the  Supreme  Court  of  Illinois  and  ratified  by  the 
governor.  The  public  conscience  is  becoming  uneasy  under  the 
suspicion  that  this  was  a  political  trial  and  a  class  execution,  like 
some  historic  attainders  which  have  left  the  imprint  of  bloody 
fingers  upon  the  jurisprudence  of  England.  It  is  averred  by  friends 
and  believed  by  many  enemies  of  the  condemned  men  that  their 
trial  was  unfair,  the  rulings  of  the  courts  illegal,  and  the  sentence 
unjust.  The  trial  of  the  Chicago  anarchists  is  ended,  but  the  trial 
of  the  judgment  under  which  they  suffered  is  only  just  begun. 
When  reason  and  courage  return  to  the  people  of  Illinois,  that  judg- 
ment will  be  reversed,  and  the  terrified  magistrates  who  pronounced 
it  and  sustained  it  will  be  sentenced  to  an  immortality  of  derision. 
It  will  be  reversed  as  emphatically  as  the  Dred  Scott  judgment  was 
reversed;  as  thousands  of  other  barbarous  judgments  have  been 
reversed;  as  righteousness  in  due  time  shall  reverse  a  thousand 
more.  The  march  of  civilization  is  over  the  judgments  of  supreme 
courts,  and  on  the  ruins  of  those  judgments  humanity  lays  the 
foundation  for  better  laws. 

The  indictment  against  the  judgment  in  the  anarchist  case 
contains  two  counts:  one  alleges  that  the  victims  of  the  judgment 
were  innocent  of  the  crime  for  which  they  were  condemned,  and 
the  other  alleges  that  their  trial  was  unfair.  The  "  Revenge " 
circular  of  May  4th  has  been  answered  by  another  "Revenge"  cir- 
cular in  the  shape  of  a  judicial  decree.  The  law  of  the  land  has 
been  driven  from  the  court  house  by  the  law  of  retaliation.  The 
issue  is  not  to  be  evaded  by  the  plea  that  if  the  defendants  were 
not  guilty  of  murder  they  were  guilty  of  something  else.  They 
were  tried  for  murder,  they  were  condemned  for  murder,  and  for 


THE  TRIAL  OF  THE  JUDGMENT. 


murder  they  were  put  to  death!  There  are  state  trials  famous  in 
history,  not  because  of  their  dramatic  character  and  surroundings, 
nor  because  of  the  magnitude  of  the  crimes  involved,  but  because 
in  those  trials  the  law  itself  was  twisted  out  of  moral  symmetry  to 
gratify  public  revenge;  justice  was  violated  in  her  own  temple  and 
the  fountain  of  liberty  polluted.  This  case  will  be  memorable  also, 
not  for  the  enormity  of  the  crime  charged,  but  for  the  enormity  of 
the  trial.  The  methods  of  procedure  practiced  and  allowed  by  the 
judges  of  King  James's  time — methods  now  obsolete  in  England — 
have  been  revived  in  Illinois.  Trial  by  jury  has  been  perverted, 
even  to  the  shedding  of  innocent  blood,  and  all  the  securities  of 
liberty  have  been  put  in  jeopardy. 

Conspicuous  among  the  accused  in  this  indictment  stands  the 
governor  of  Illinois.  Appalled  by  the  clamor  of  an  angry  populace, 
he  executed  vengeance  with  merciless  decision.  Panic-stricken  by 
the  noise  outside,  he  shut  his  ears  to  the  heart-broken  prayers  of 
children,  mothers,  and  wives  pleading  at  his  knees  for  father, 
husband,  son.  He  did  this,  although  he  knew  that  the  frightened 
courts,  even  when  speaking  the  death  sentence,  had  confessed  that 
errors  prevailed  in  the  trial.  He  did  this,  when  as  a  lawyer  he 
knew  that  there  were  other  errors  in  the  trial  which  the  courts  did 
not  confess.  He  had  an  opportunity  to  show  the  highest  quality  of 
magnanimous  power,  and  at  the  same  time  save  the  jurisprudence 
of  Illinois  from  the  stigma  which  must  disfigure  it  for  centuries  to 
come.  He  lacked  greatness  of  spirit,  and  his  opportunity  passed 
away.  Had  he  been  morally  tall  enough  to  reach  the  knees  of 
Abraham  Lincoln,  he  would  have  saved  the  state  of  Illinois  from 
"the  deep  damnation  of  this  taking  off." 

It  has  been  contended  in  excuse  for  the  governor  that  his 
authority  over  a  judicial  sentence  is  the  prerogative  of  mercy 
alone,  and  that  all  questions  of  guilt  or  innocence,  of  justice  or 
injustice,  have  been  settled  by  the  decision  of  the  Supreme  Court. 
This  is  a  mistake.  The  power  to  pardon  is  frequently  judicial, 
although  the  form  of  its  exercise  is  not.  It  is  true  that  the  governor 
does  not  reverse  or  modify  the  judgments  of  the  courts  except  in 
the  form  of  clemency,  yet  the  power  to  pardon  is  continually 
exercised  as  a  judicial  function  vested  in  the  chief  magistrate.  It 
has  been  so  from  the  earliest  times  in  England,  and  there,  as  here, 
under  the  form  of  mercy,  errors  of  the  courts  are  constantly  cor- 


A   KKVIKW   ()!•     I'lll-;   ANAKCIIIST  CASE. 


rected  by  the  pardonin.i,^  power.       The  case  of  John  Frost  will  serve 
as  an  exam]jle: 

In  1839  l'"rost,  Williams  and  Jones  were  tried  in  Wales  for  high 
treason.  They  had  levied  war  against  the  government.  They  had 
led  a  mob  of  men  to  attack  the  jail  at  Monmonth,  and  they  had 
engaged  in  battle  with  the  police  and  soldiers.  As  a  consecpience 
of  this  mad  enterprise  tifty  men  were  killed.  There  was  no  question 
about  the  guilt  of  the  accused,  and  they  were  duly  sentenced  to 
death.  After  the  trial  was  over  it  was  claimed  by  their  counsel 
that  the  list  of  witnesses  for  the  crown  had  not  been  handed  to  the 
prisoners  the  legal  number  of  days  before  the  trial.  This  point 
was  assigned  for  error,  and  it  was  referred  to  the  fifteen  judges 
sitting  in  Westminster  Hall.     Their  answer  was: 

First.  A  majority  of  the  judges  in  the  proportion  of  nine  to  six 
are  of  opinion  that  the  delivery  of  the  list  of  witnesses  was  not  a 
good  delivery  in  point  of  law. 

But,  secondly.  A  majority  of  the  judges  in  the  proportion  of 
nine  to  six  are  of  opinion  that  the  objection  to  the  delivery  of  the 
list  of  witnesses  was  not  taken  in  due  time. 

So  the  judgment  was  affirmed;  but  the  government  said  that  it 
would  never  do  to  hang  three  men,  however  guilty,  who  at  their 
trial  were  deprived  of  any  right  to  which  they  were  entitled  by  the 
law.  although  the  prisoners  themselves  had  waived  it  by  not  asking 
for  it.  The  judges  having  confessed  that  there  was  error  in  the 
trial  it  would  be  a  scandal  that  the  men  should  suffer  death.  The 
sentence  was,  therefore,  commuted  to  transportation  for  life.  In 
the  Frost  case  the  commutation  of  the  sentence  was  a  judicial  act 
exercised  in  the  form  of  clemency  under  the  pardoning  jiower. 

ERRORS    IN    THE    RECORD. 

In  the  present  case  the  Supreme  Court  of  Illinois  confesses 
errors  in*  the  record,  and,  as  in  the  Frost  case,  decides  as  to  some 
of  them  that  objection  was  not  made  in  time.  For  instance,  in  the 
•matter  of  the  Most  letter,  the  language  of  the  court  is  this: 

The  objection  that  the  letter  was  obtained  from  the  defendant 
by  an  unlawful  seizure  is  made  for  the  first  time  in  this  court.  It 
was  not  made  on  the  trial  in  the  court  below. 

As  a  technical  rule  of  practice  this  may  be  correct,  and  perhaps 
binding  on  the   Supreme  Court,  but    it    was    not   binding   on    the 


THE  TRIAL  OF  THE   JUDGMENT. 


governor,  as  the  like  decision  in  Frost's  case  was  not  binding  on 
the  crown.  Technicalities  in  favor  of  life  should  be  liberally 
allowed,  and  this  is  a  maxim  of  the  law.  Technicalities  in  favor 
of  death  have  a  ghastly  look;  they  are  altogether  shocking,  and 
they  are  odious  in  the  law. 

In  the  deepest  tragedy  there  are  scenes  of  comedy.  So  in  this. 
Scarcely  had  the  Supreme  Court  handed  the  seven  men  to  the  lord 
high  executioner  when  up  steps  Mr.  Justice  Mulkey,  a  member  of 
the  court,  and,  with  comic  paradox,  passes  mortal  judgment  upon 
the  decision  itself.  The  stab  he  gives  it  is  fatal.  Here  is  what  he 
says: 

It  is  not  my  intention  to  offer  a  separate  opinion,  as  I  should 
have  done.  I  desire  to  avail  myself  of  this  occasion  to  say  that, 
while  I  concur  in  the  conclusions  reached,  and  also  in  the  general 
views  as  entered  in  the  opinion  filed,  I  do  not  wish  to  be  understood 
as  holding  that  the  record  is  free  from  error,  for  I  do  not  think 
it  is. 

Which  is  to  sa\',  that  Mr.  Justice  Mulkey  agrees  to  the  con- 
clusions, but  not  to  the  premises  on  which  they  are  founded.  He 
agrees  to  the  general  views,  but  not  to  the  special  reasons.  He  is 
neither  ethical  nor  logical,  for  if  the  premises  are  bad  the  con- 
clusion must  be  at  least  dubious.  If  the  special  reasons  are 
unsound  the  general  views  resulting  from  them  cannot  sanctify  the 
hanging  of  men.  Judge  Mulkey's  concurrence  in  death  for  the 
anarchists  on  general  principles  is  but  a  judicial  echo  of  the  angry 
clamor  of  the  streets.  "They  didn't  have  a  fair  show,"  said  the 
])resident  of  a  vigilance  committee,  in  excuse  for  the  hanging  of  a 
gang  of  bad  characters,  '•  but  most  of  'em  was  guilty."  The  apology 
was  weak. 

Judge  Mulkey  thinks  that  he  can  sanction  the  decision,  and  at 
the  same  time  sustain  his  reputation  as  a  lawyer  by  disclaiming  all 
responsibility  for  its  errors.  He  knows  that  it  becomes  authority 
in  Illinois,  and  that  it  will  be  embalmed  in  the  "Reports."  He 
sustains  the  decision,  barring  the  errors  in  it.  When  the  passions 
of  this  hour  are  gone,  when  the  bar  of  Illinois  is  laughing  at  the 
decision  as  a  legal  statement.  Judge  Mulkey  reserves  the  right  to 
say:  "I  told  you  so  at  the  time;  I  said  then  that  errors  were  in  the 
record:  these  that  you  ridicule  are  the  errors  that  I  meant."  This 
resource  cannot  avail   him,  because   he   was   not   brave  enough    to 


A    Ri;\li;\\    oi      I  111'.   A.\Ak(  llISl-  CASE.  7 

expose  in  a  separate  opinion  the  errors  he  confessed.  Chief  justice 
Pilate  confessed  that  there  were  errors  in  the  trial,  and  even  waslied 
his  hands  of  the  judgment,  but  the  stain  remains  forever.  .Mr. 
Justice  Mulkey  consented  to  the  death  of  seven  men  under  a  jud,i<- 
ment  which,  although  legally  defective  and  infirm,  was  good  enough 
for  them.  The  intimation  of  Mr.  Justice  Mulkey  that  he  had  a 
dissenting  opinion  in  his  mind,  which  he  declined  to  spread  upon 
the  record,  was  of  itself  a  full  justification  for  interference  by  the 
governor  of  the  state. 

THE    ODDS    AGAINST     THK    I'RISONKRS. 

In  the  trial  of  the  anarchists  the  law  itself  was  bent  and  strained 
to  the  breaking  point.  On  the  floor  of  the  court  house  they  stood 
at  a  perilous  disadvantage.  The  scales  of  justice  were  not  poised 
evenly  between  the  accused  and  the  state.  They  were  poor;  the 
prosecution  rich.  The  whole  machinery  of  the  city  and  county 
government  was  at  the  service  of  the  prosecution.  The  treasury 
was  reckless  of  cost.  The  police  force,  the  detective  force,  and 
every  official  influence  were  active  against  the  prisoners.  They 
were  beaten  from  the  start.  In  the  arena  of  life  or  death  they 
fought  against  odds  unfair  and  invincible.  They  played  for  a  jury 
with  dice  loaded  against  them.  The  indictment  was  a  bewildering 
contradiction  of  sixty-nine  discordant  counts,  and  every  count  was 
the  horn  of  a  dilemma.  If  Schnaubelt  threw  the  bomb,  says  the 
Supreme  Court,  you  are  guilty  as  his  accomplices,  because  the 
indictment  alleges  that  Schnaubelt  threw  it.  If  Schnaubelt  did  not 
throw  the  bomb,  as  you  have  tried  to  show,  then  the  case  of  the 
state  is  proved,  because  the  indictment  says  that  it  was  not  thrown 
by  him,  but  by  an  unknown  person.  The  exact  language  of  the 
court  is  this: 

All  the  proof  introduced  by  the  defendants  thus  tentling  to 
show  that  Schnaubelt  did  not  throw  the  bomb  tended  also  to  prove 
that  an  unknown  person  threw  it. 

From  a  dilemma  like  that  escape  is  hopeless.  E^vidence  and  its 
contradiction  are  alike  fatal  to  the  accused.  From  a  labyrinth  of 
sixty-nine  counts  the  most  experienced  pilot  cannot  extricate  the 
prisoners.  There  is  not  a  guide  either  in  legal  or  moral  philosophy 
that  can  show  the  way  out.  ()n  this  subject  the  rebuke  of  Lord 
Chief  Justice  Denman.  in  delivering  judgment  in  the  O'Connell 
case,  may  be  ipioted  with  approbation.      He  said: 


S  THE  TRIAL  OF  THE  JUDGMENT. 


I  must  take  the  liberty  to  throw  out  an  observation  that,  in  my 
opinion,  there  cannot  be  a  much  greater  grievance  or  oppression 
than  these  endless,  voluminous  and  unintelligible  indictments.  The 
indictment  which  fills  fifty-seven  folio  pages  is  an  abuse  to  be  put 
down,  not  a  practice  to  be  encouraged. 

In  the  O'Connell  case  there  were  eight  defendants,  as  in  the 
anarchist  case,  and  they  also  were  imprisoned  in  the  convolutions 
and  sinuosities  of  an  indictment  with  many  counts,  "  endless,  volu- 
minous and  unintelligible."  The  indictment  which  drew  from  Lord 
Denman  that  indignant  criticism  contained  only  eleven  counts, 
while  that  against  the  anarchists  contained  sixty-nine.  This  is  a 
six-fold  greater  "grievance  and  oppression"  than  the  indictment  in 
the  O'Connell  case,  and  the  wrong  is  multiplied  a  thousand  fold 
when  we  remember  that  the  anarchists  were  on  trial  for  their  lives, 
while  in  the  O'Connell  case  the  offense  charged  was  only  a  misde- 
meanor punishable  by  imprisonment  and  fine. 

_^  THE    SUPREME    COURT    EVADES    ITS    DUTY. 

A  perusal  of  the  decision  will  show  that  it  is  open  to  severe 
criticism,  not  only  for  the  manner  in  which  certain  points  are 
examined  and  reviewed,  but  also  for  omitting  to  give  any  reasons 
for  deciding  other  points  adversely  to  the  prisoners.  The  court, 
after  passing  judgment  upon  a  number  of  objections  raised  by  the 
defense  which  the  judges  designate  as  "the  most  important,"  speaks 
of  "some  other  points  of  minor  importance  which  are  not  noticed." 
"As  to  these,"  the  weary  court  remarks,  "it  is  safe  to  say  that  we 
have  considered  them  and  do  not  regard  them  as  well  taken." 
When  a  man  condemned  to  die  points  out  what  he  claims  were 
errors  in  his  trial,  and  asks  the  court  of  last  resort  to  pass  upon 
them  and  give  reasons,  a  refusal  to  do  so  is  a  wrong  as  plainly 
visible  to  layman  as  to  lawyer.  It  is  a  flippant  thing  to  sentence  a 
fellow-man  to  death  and  at  the  same  time  tell  him  that  the  points 
of  his  appeal  have  been  considered,  that  they  are  not  well  taken, 
and  that  it  would  be  a  "  tiresome"  thing  to  explain  the  reasons  why. 
The  proof  that  they  have  been  considered  should  appear  in  reasons 
for  rejecting  them,  and  it  is  the  duty  of  the  court  to  show  wherein 
thev  are  not  well  taken. 

The  judges,  in  mercy  to  the  condemned  men,  should  have 
argued,  not  only  such  points  of  the  appeal  as  they  considered 
"most  important,"  but  also  every  point  which  the  men  whose  lives 


A  REVIEW  OF  THE  ANARCHIST  CASE. 


were  at  stake  regarded  as  of  aii\'  importance  whatever.  Had  the 
decision  been  the  reversal  of  a  verdict,  it  would  have  been  neces- 
sary to  present  only  reasons  cntnigh  to  justify  the  reversal,  disre- 
garding all  the  others;  but  this  was  the  affirming  of  the  death 
sentence  against  seven  men.  The  defendants  had  an  equal  right 
with  the  judges  to  say  what  assignments  of  error  were  "important." 
Considering  that  the  court  was  weaving  a  very  long  rope  for  the 
hanging  of  seven  men — weaving  it  out  of  a  confused  tangle,  com- 
posed of  threads  of  evidence  some  of  which,  according  to  the 
decision  itself,  were  legal  and  some  of  them  not — the  statement  ol' 
the  court  that  any  further  comment  ''would  swell  the  opinion  into 
tiresome  proportions"  is  no  sufficient  excuse.  There  are  man\' 
cases  involving  only  dollars,  where  longer  opinions  have  been 
written  without  exhausting  the  court.  In  the  "Mordaunt"  case — a 
mere  suit  for  divorce  —  the  opinion  is  five  times  as  long  as  the 
opinion  in  the  anarchist  case.  In  the  "Claimant"  case — a  trial  for 
perjury — the  opinion  is  ten  times  as  long.  Dividing  the  opinion 
by  seven,  the  number  of  men  condemned,  the  allowance  for  each 
was  not  large,  and  although  the  whole  duty  of  giving  reasons  may 
have  been  "■tiresome,'''  the  duty  ought  to  have  been  done. 

The  Supreme  Court  was  peevish  in  satirizing  the  argument  of  the 
defendants  as  '■'■lengthy.''''  No  doubt  it  was  very  "tiresome"  to  con- 
sider a  "lengthy"  argument  on  such  a  trifling  matter  as  the  hanging 
of  seven  men.  The  judges  must  have  been  going  to  dinner  when 
they  administered  this  rebuke:  "In  their  lengthy  argument  counsel 
for  the  defense  make  some  other  points  of  minor  importance,  which 
are  not  noticed."  This  contemptuous  dismissal  will  be  a  warning 
not  to  offend  again.  It  is  true  that  the  trial  was  lengthy:  the 
indictment  was  lengthy:  the  rulings  and  instructions  of  the  trial 
court  were  lengthy.  For  all  these  the  prosecution  was  to  blame, 
not  the  defendants;  nevertheless  the  Supreme  Court  betrays  impa- 
tience because  counsel  make  a  "lengthy"  argument  in  behalf  of 
men  condemned  to  die. 

THE    WRONG    OF    REFUSING    SEPARATE    TRIALS. 

As  if  the  tortuosities  of  the  indictment  were  not  sufficiently 
complicated,  they  were  again  multiplied  by  eight  when  the  court 
refused  a  separate  trial  to  each  of  the  defendants.  There  is  not 
another  state   trial  in  the  history  of   political  prosecutions  where 


THE  TRIAL  OK  THE  JUIK-.MEXT. 


eight  men  were  tried  together  for  their  lives  on  an  indictment 
containing  sixty-nine  counts.  There  is  not  an  enlightened  nation 
on  the  globe  that  would  permit  it,  and  if  such  a  trial  can  legall)' 
hang  a  man  in  Illinois  her  civilization  needs  hurrying  up.  It  is 
now  conceded  by  enlightened  law  that  it  is  enough  for  any  one 
man  to  defend  his  own  life  when  the  state  is  arrayed  against  him  in 
the  courts.  He  is  not  to  be  borne  down  by  testimony  given  against 
other  men  who  may  happen  to  be  indicted  with  him.  To  imperil 
an  innocent  man  by  compelling  him  to  join  his  own  defense  with 
that  of  men  who  may  be  guilty,  is  a  wrong,  not  only  against  him, 
but  against  the  just  and  humane  spirit  of  the  law  itself,  it  shocks 
the  moral  sense,  and  wherever  it  is  done,  or  attempted,  a  cloud  of 
suspicion  settles  down  upon  the  trial. 

The  Supreme  Court  decides  that  the  matter  of  separate  trials  is 
within  the  discretion  of  the  court  below  to  allow  them  or  den)- 
them.  This  may  be  doubted,  but,  if  true,  it  is  a  judicial  discretion, 
not  an  arbitrary  power;  a  discretion  subject  to  be  reviewed  by 
the  Supreme  Court,  and  corrected  wherever  its  exercise  has  been 
oppressive  or  unjust.  It  is  a  discretion  that  may  be  reviewed  by 
the  governor  of  the  state  when  by  its  operation  the  lives  of  men 
are  placed  in  jeopardy.  The  joinder  of  the  defendants  made  the 
testimony  against  each  avail  against  all.  It  practically  deprived 
them  of  the  benefit  of  each  other's  testimony;  it  embarrassed  them 
at  every  step  of  the  trial,  and  it  confused  the  jury,  who  never  even 
tried  to  sift  the  evidence  or  apply  it.  In  hopeless  bewilderment, 
they  cov-^ented  themselves  with  a  hurried  verdict  of  guilty  "as 
charged  in  the  indictment,"  an  indictment  which  alleged  the  killing 
of  Degan  in  sixty-nine  different  ways.  They  never  read  the  indict- 
ment, for  they  were  not  out  long  enough  to  do  so. 

Whatever  may  have  been  the  practice  in  former  times,  the 
current  of  judicial  opinion  in  modern  days  has  swept  away  the 
injustice  by  which  men  were  tried  in  batches  under  indictments 
fraught  with  death.  The  doctrine  may  now  be  considered  estab- 
lished in  law,  as  it  always  was  in  morals,  that  defendants  in  capital 
cases  are  entitled  to  separate  trials  as  of  right.  It  is  not  a  matter 
at  all  within  the  discretion  of  the  couit.  Even  under  the  sanguin- 
ary criminal  code  of  England  in  the  days  of  political  persecution 
the  right  of  defendants  to  be  tried  se]iarately  was  freely  allowed, 
in  the  i)rcscnl    day   a    refusal    of    it    would    be   considered  an  illegal 


A  REVIEW  <JF  THE  ANARCHIST  CASE. 


act,  poisoning  the  whole  current  of  the  trial.  In  the  case  of  P>ost, 
Williams  and  Jones,  before  referred  to,  the  defendants  asked  to  be 
tried  separately,  and,  although  the  court  was  bitterly  prejudiced 
against  them  and  their  revolutionary  principles,  their  demand  was 
conceded  as  a  matter  of  absolute  right.  The  irrational  cruelty  of 
the  opposite  doctrine  is  j)owerfully  exposed  by  the  fate  of  Oscar 
Neebe. 

THE    CASK    ())     O.SCAK    NEEBE. 

Oscar  Neebe  was  tried  for  murder  conjointly  with  Spies,  Parsons, 
and  five  others.  Knowing  his  own  absolute  innocence,  and  not 
knowing  what  evidence  might  be  brought  against  the  rest,  he  asked 
for  a  separate  trial.  His  request  was  refused.  Although  all  the 
evidence  against  him  could  have  been  given  in  a  few  minutes,  he 
was  compelled  to  stand  in  peril  for  two  months  while  all  sorts  of 
testimony  was  poured  into  the  jury-box  against  seven  other  men 
indicted  with  him.  At  the  end  of  that  time  the  jury  were  so  stujje- 
fied  by  the  incongruous  mixture  that  they  actually  found  all  the 
defendants  guilty  of  murder  in  the  first  degree^  Oscar  Neebe  with 
the  rest. 

It  seems  hardly  credible,  yet  it  is  true,  that  all  the  testimony 
against  Neebe  would  not  justify  a  five-dollar  fine.  In  their  appeal 
to  the  Suprem^e  Court  his  counsel  say:  "  We  find  ourselves  at  a  loss 
to  argue  the  case  of  Mr.  Neebe.  There  is  absolutely  nothing  in 
the  record  to  support  his  conviction,  and  in  presenting  this  case  to 
this  honorable  court  we  will  rest  as  to  Mr.  Neebe,  and  wait  to  see 
what  the  prosecution  can  say  upon  this  record  in  support  of  a 
verdict  and  judgment  against  him  under  the  above  indictment." 
This  challenge  was  accepted  by  the  state's  attorney,  and  answered 
thus: 

First.  Neebe  was  a  stockholder  in  the  organization  which  owned 
the  Arbeiter  Zeitung. 

Secondly.  On  Monday  evening.  May  3d,  Neebe  went  into  the 
saloon  of  Franz  Heun  and  showed  him  the  "Revenge"  circular;  he 
spoke  to  Heun  about  the  McCormick  riot,  and  said:  "It's  a  shame 
that  the  police  act  that  way,  but  maybe  the  time  comes  that  it  goes 
the  other  way — that  they  get  a  chance,  too." 

Thirdly.  Michael  H.  Marks,  a  police  officer,  went  to  the  office 
of  the  Arheiter  Zeiiung  on  the  5th  of  May;  found  Neebe  there,  who 
said  he  was  in  charge  of  the  office  in  the  absence  of  Spies  and 
Schwab;    Macks  told  him  he  was  going  to  search  the  office;    Neebe 


THE  TRIAL  OV  THE  JUDGMENT. 


said:  "All  right,  you  will  not  find  anything  there  but  papers  and 
writing  material":  Marks  found  a  bag  containing  dynamite;  asked 
Neebe  what  it  was;  Neebe  said:  "1  guess  that  is  something  for 
cleaning  type." 

Fourthly.  John  Stift,  a  police  officer,  went  to  the  house  of  the 
defendant  Neebe  on  Friday,  the  yth  of  May,  and  found  there  a 
pistol,  a  sword,  a  breech-loading  gun  and  a  red  flag. 

Fifthly.  Neebe  belonged  to  the  International  Association,  North 
Side  Group. 

The  above  is  all  the  evidence  that  the  prosecution  pretends  to 
have  had  against  Neebe,  yet  on  that  flimsy  showing  the  jury  found 
him  guilty  of  murder  in  the  first  degree;  yea,  of  sixty-nine  different 
kinds  of  murder  in  the  first  degree;  and  the  Supreme  Court, 
befogged  like  the  jury  by  the  confusion  of  testimony  against  eight 
different  men,  blindly  affirmed  the  judgment  against  Neebe.  A 
jury  which,  from  prejudice  or  ignorance,  or  both,  could  say  guilty 
of  murder  on  evidence  so  unreal  and  frivolous  was  not  competent 
to  render  a  rational  verdict  on  any  array  of  facts  whatever.  A 
verdict  by  a  jury  of  Indians  would  be  entitled  to  as  much  consider- 
ation. They  rashly  followed  the  advice  of  the  state's  attorney,  and 
found  the  man  guilty  of  murder,  treason,  anarchy,  disorderly  con- 
duct and  "fiat  burglary." 

This  evidence,  trivial  as  it  is,  grows  weaker  on  cross-examina- 
tion; but,  without  presenting  the  other  side  of  it,  allowing  it  to 
stand  exactly  as  it  appears  in  the  brief  of  the  state's  attorney,  it  is 
entirely  consistent  with  innocence.  Neebe,  had  he  the  least  idea 
that  the  possession  of  arms  and  a  red  flag  amounted  to  murder  in 
Illinois,  or  even  evidence  of  murder,  could  easily  have  got  rid  of 
them  between  Tuesday  and  Friday.  So,  also,  he  could  have  thrown 
away  the  package  of  dynamite  on  Wednesday  morning,  before  the 
policemen  searched  the  office,  had  he  known  what  it  was.  His 
answer  to  the  policeman  must  convince  any  candid  mind  that  he 
did  not  know  what  it  was  any  more  than  the  policeman  did,  who 
testified  that  he  thought  it  was  greasy  sawdust. 

I>.-\KriS.\N     I'l. HADING    BY    THE    SUPREME    COURT. 

The  opinion  of  the  Supreme  Court  read  like  the  artful  plea  of 
an  advocate.  It  is  not  the  stately  reasoning  of  a  dignified  and  fair 
tribunal.  Here's  the  subtle  way  the  court  made  a  slip-knot  for  the 
anarchists  : 


.i:\IKW  ol-  Till",   AXARCHIS'l'  CASi:.  ,3 


On  Dec.  29th,  1S85,  the  North  Side  ('irou]j,  to  k'/u'c/i  A'cciir  be- 
longed, held  a  meeting  at  58  Clybournc  Avenue,  and  adojjted  the 
following  resolutions. 

That  is  like  holding  a  man  responsible  for  the  proceedings  of  a 
Freemason's  lodge,  because  he  is  a  Freemason,  although  he  was  not 
present  at  the  lodge  meeting,  and  knew  nothing  of  its  action. 
Neebe  was  not  at  the  meeting  referred  to,  and  knew  nothing  about 
the  resolutions.  The  duplicity  of  the  siigo^cstio  contained  in  the 
above  quotation  is  visible  through  its  thin  disguise.  A  little  further 
on,  and  just  by  way  of  practice,  the  suggestion  is  repeated  thus  : 

The  defendant  Neebe,  as  has  already  been  stated,  was  also  a 
member  of  the  North  Side  Group,  which  had  resolved  "  not  to 
meet  the  enemy  unarmed  on  May  i,  1886." 

It  was  not  Neebe  that  "  hatl  resolved,"  but  the  "  North  Side 
Group."  Neebe  is  stealthily  brought  in  by  the  process  of  insinua- 
tion, which  answers  for  evidence. 

Worse  than  that,  the  Supreme  Gourt  condescends  to  garble  tes- 
timony, in  order  to  shore  up  the  tottering  case  against  Neebe,  thus: 

He  stated  to  the  officers  that  a  package  of  dynamite  which  they 
found  in  a  closet  on  one  of  the  floors  of  a  building  was  something 
for  '•  cleaning  type." 

Here  the  court  again  betrays  itself,  and  reveals  the  advocate. 
The  plea  of  the  court  is  that  Neebe  made  a  positive  statement 
that  was  false.  Even  the  willing  policeman  was  not  so  "willing" 
as  the  Supreme  Court  to  make  testimony  against  Neebe.  He  testi- 
fied, as  the  record  shows,  that  Neebe  said,  ''I guess  that  is  some- 
thing for  cleaning  type";  the  natural  answer  of  an  innocent  man, 
who  did  not  know  what  the  "  yellow-looking  sawdust  "  was.  The 
distance  is  immense  between  the  statement  made  by  Neebe  and  the 
perversion  of  it  made  by  the  Supreme  Court.  Those  three  si)eci- 
mens  of  partisan  pleading  are  enough  for  the  present. 

In  addition  to  all  that,  the  Supreme  Court,  in  a  very  careless 
way,  falls  into  error  concerning  the  facts  about  Neebe.  In  the  fol- 
lowing statement  the  court  makes  a  serious  mistake  : 

He  is  shown  to  have  been  president  at  meetings  where  the  use 
of  arms  and  dynamite  against  the  police  was  advocated  on  Mon- 
day night,  May  3,  1886. 

Nothing  of  the  kind  was  shown,  or  could  be  shown :  and  the 
court  must  have  confounded   Neebe,  another  meeting,  and  another 


J4  THE  TRIAL  OF    THE  JUDGMENT. 


time,  with  the  Monday  night  meeting  and  another  man.  This  in- 
justice was  not  intentional  on  the  part  of  the  Supreme  Court,  for 
the  bhmder  was  easy  to  make.  The  whole  record  of  the  trial  was 
a  big  library  of  premeditated  confusicn,  bewildering  jurymen, 
judges  and  the  governor. 

As  the  albatross  hung  around  the  neck  ot  the  ancient  mariner, 
weighting  him  down  with  remorse,  so  Oscar  Neebe  hangs  upon  the 
state's  attorney.  To  release  Neebe  would  be  to  acknowledge 
wrong,  because,  as  Robert  Emmett  said  in  his  death  speech  to  the 
court,  "there  must  be  guilt  somewhere."  The  release  of  Neebe 
would  fasten  the  guilt  of  his  conviction  upon  the  prosecution  and 
all  its  ministers.  It  would  be  a  confession,  and  therefore  the  state's 
attornev  will  not  dare  to  ask  for  the  liberation  of  Oscar  Neebe. 

Be  it  remembered,  as  the  jargon  of  the  lawyers  has  it,  be  it  re- 
membered that  Neebe  was  not  at  the  Haymarket  meeting,  nor  at 
the  Monday  night  meeting  which  called  it,  nor  at  the  meeting  of 
the  North  Side  Group  which  "resolved,"  etc.;  that  he  made  no 
speeches,  and  wrote  no  articles.  As  his  counsel  strongly  and 
honestlv  say,  "  There  is  no  pretense  finding  support  in  the  evidence 
that  he  was  present  at  the  Haymarket  meeting,  or  knew  of  the  pur- 
pose of  holding  it,  or  was  consulted  as  to  calling  it,  or  knew  that 
the  same  would  be  held;  and  there  is  no  testimony  that  shows  or 
tends  to  show  that  he  advised,  aided,  encouraged,  abetted  or 
assisted  the  throwing  of  the  bomb."  Well  may  they  find  them- 
selves at  a  loss  to  argue  the  case  of  Neebe. 

By  trying  the  defendants  all  together,  nearly  every  piece  of 
evidence  against  them  separately  was  multiplied  by  eight.  For 
instance,  a  public  speech  made  by  Parsons  in  February,  1885,  is 
made  evidence  against  Fielden  and  six  other  men  on  trial  for  a 
murder  committed  in  May,  1886.  So,  a  public  speech  made  by 
Fielden  in  March,  1885,  is  made  evidence  against  Parsons  and  six 
others  in  the  same  way.  Old  editorial  articles  by  Spies  were  made 
evidence  against  Parsons  and  the  other  six,  while  editorials  by 
Parsons  were  transmuted  into  testimony  against  Spies.  The  de- 
fendants were  weighed  down  with  hundreds  of  criminations,  which, 
having  reference  to  only  one  of  them,  were  made  to  bear  upon 
them  all.     Says  the  court: 

Spies,  Schwab,  Parsons  and  Engel  were  responsible  for  the 
articles   written  and  published   by   them   as  above   shown.     Spies, 


A  REVIEW  OF  THE  ANARCHIST  CASE.  i^ 


Schwab,    Fielden,    Parsons     and    Knj^^el    were    responsible    for    the 
speeches  nuule  by  them  respecti\  el\-. 

Here  FieUlen,  whose  name  apjjears  not  in  the  first  sentence,  is 
ingeniously  wo\en  into  the  mixture  ol'  writing,  publishing  and 
speaking,  although  he  never  wrote  or  published  anything. 

If  it  is  pretended  that  the  jury  applied  the  evidence  to  the 
defendants  'vv.s-/',",-//rv7r,"  the  proof  is  absolutely  conclusive  that 
the\'  did  not.  It  was  impossible  for  them  to  do  so  in  the  short 
time  occupied  by  them  in  deliberation.  In  that  short  time  they 
could  not  have  reviewed,  compared  or  applied  the  evidence  either 
to  the  counts  in  the  indictment  or  to  the  defendants"  respectively." 

The  Supreme  Court  itself  was  compelled  to  recognize  the  illegal 
character  of  the  testimony  above  described,  although  in  an  apolo- 
getic way.  The  confession  and  apology  of  the  court  is  in  these 
words: 

Declarations  that  are  merely  narrative  of  what  has  been  done 
or  may  be  done  are  incompetent,  and  should  not  be  admitted 
e.Kcept  as  against  the  defendant  making  them  or  in  whose  presence 
they  are  made.  The  utterances  of  the  defendant  Spies,  whether  in 
his  paper,  his  speeches  or  his  conversation,  were  in  furtherance  of 
the  purposes  and  objects  of  the  conspiracy  in  which  he  was  engaged. 
If  testimony  as  to  expressions  used  by  him,  that  are  not  of  the 
character  here  indicated,  has  crept  into  the  record,  it  is  so  incon- 
siderable that  it  could  not  in  any  way  have  injured  the  other 
defendants. 

What,  then,  was  the  testimony  that  injured  Neebe?  Surely  not 
the  testimony  against  him.  It  must  have  been  the  testimony 
against  Fielden,  Parsons,  Lingg,  and  Spies. 

Unfortunately,  a  great  deal  of  testimony  '•  not  of  the  character 
indicated"  was  admitted,  not  only  against  the  defendant  making 
the  declarations,  but  against  all  the  others.  It  is  a  violent  assump- 
tion that  it  could  not  have  injured  the  others  when  it  is  remembered 
that  the  jury  did  not  attempt  to  sift  the  evidence  and  attach  each 
piece  of  it  to  the  particular  ilefendant  implicated  by  it.  Other 
errors  are  mildly  rebuked  for  having  ••  crept "  into  the  record. 
They  did  not  creep  in.  They  were  crowded  in  against  the  protest 
of  the  defendants  and  to  their  serious  injury.  By  trying  eight  men 
together  on  an  indictment  of  sixty-nine  counts  the  door  was  thrown 
wide  open,  and  errors  did  not  have  occasion  to  creep  in.  They 
were  invited  in  and  welcomed.     The  court  reasons  as  if  the  defend- 


THE  TRIAL  OF  THE   TUDGMEXT. 


ants  insisted  on  a  joint  trial,  and  are  therefore  responsible  for 
the  illegal  consequences.  The  prosecution  is  responsible,  not  the 
prisoners. 

The  arbitrary  joinder  of  the  defendants  virtually  deprived  them 
of  the  benefit  of  each  other's  testimony.  This  is  not  contradicted 
by  saying  that  they  were  offered  as  witnesses  and  allowed  to  testify. 
Their  testimony  was  discredited  by  the  jury,  and  the  Supreme 
Court  intimates  that  the  jurors  were  justified  in  disregarding  it, 
because  the  men  were  on  trial  for  their  lives,  and  therefore  inter- 
ested enough  to  speak  falsely.  Thus,  in  referring  to  Fielden's  tes- 
timony, the  court  says: 

It  was  for  the  jury  to  determine  whether  he  told  the  truth  or 
not.     They  had  a  right  to  consider  that  he  was  on  trial  for  murder. 

All  through  the  argument  in  the  trial  below  the  jury  was  urged 
by  counsel  for  the  state  to  disbelieve  the  testimony  of  the  defend- 
ants, because  they  were  on  trial.  Here  again  the  prosecution  takes 
advantage  of  its  own  wrong.  Having  joined  the  defendants  in  the 
trial  against  their  earnest  protest,  the  state  urges  its  own  wrong- 
doing as  a  reason  for  disbelieving  them.  Had  they  been  separately 
tried,  this  reason  would  not  have  existed  except  as  to  the  value  of 
each  man's  testimony  for  himself.  Each  man  not  on  trial  would 
have  been  a  credible  witness  for  the  others.  At  all  events,  it  could 
not  have  been  objected  to  his  testimony  that  he  was  on  trial  for  his- 
life. 

UNFAIR    TACTICS    OF    THE    STATE'S    ATTORNEV. 

The  course  pursued  by  the  counsel  for  the  state  was  unfair 
throughout  the  trial.  A  few  examples  of  the  strategy  and  tactics 
they  employed  will  prove  this  accusation.  They  were  permitted  to 
imitate  Mark  Antony  when  he  inflamed  the  passions  of  the  populace 
by  pointing  them  to  "Caesar's  vesture  wounded."  They  were  per- 
mitted to  show  the  jury  not  only  the  wounded  vesture  of  Matthias 
Degan,  but  also  that  of  several  other  men  whose  names  were  not  in 
the  indictment  at  all.  They  were  permitted  to  call  the  attention  of 
the  jury  to  the  blood  upon  the  vesture,  after  the  style  of  Antony, 
when  he  said: 

See  what  a  rent  the  envious  Casca  made — 
Through  this  the  well-beloved  Brutus  stabbed; 
And  as  he  jilucked  his  cursed  steel  away, 
Mark  how  the  blood  of  Cfesar  followed  it. 


A  REVIEW  OF  THE  ANARCHIST  CASE. 


17 


The  artful  stump  speech  of  Antony  was  perfectly  Icijjitimate.  It 
was  not  made  in  a  judicial  proceeding,  but  in  a  political  contest. 
He  was  of  the  opjjosite  party  to  that  of  Hrutus.  The  struggle 
between  them  was  for  the  possession  of  the  offices  and  the  control 
of  the  government.  But  had  Antony  been  state's  attorney,  prose- 
cuting Brutus  and  Cassius  under  an  indictment  for  the  murder  of 
Ctesar,  the  Roman  judges  would  not  ha\'e  allowed  him  to  practice 
before  a  jury  in  the  court  house  the  methods  he  employed  in  the 
streets  before  a  mob.  The  object  of  Antony  in  Caesar's  case  and 
of  the  counsel  for  the  i)eo]jle  in  Degan's  case  were  alike  to  e.xcite 
feelings  of  anger  and  revenge  in  the  men  they  were  talking  to — the 
jury  in  the  one  case,  the  mob  in  the  other.  There  was  no  dispute 
whatever  about  the  matter  of  Degan's  death,  and  therefore  the 
exposure  of  his  wounded  vesture  to  the  jury  was  useless  and  super- 
fluous, except  as  an  appeal  for  vengeance.  The  Supreme  Court, 
unwilling  to  sanction  such  a  method,  finds  a  weak  excuse  for  it, 
anil  mildly  rebukes  it  thus: 

The  articles  in  question  were  presented  in  the  condition  in 
which  they  were  left  aftei  being  exposed  to  the  force  of  an  explod- 
ing bomb,  for  the  purpose  of  showing  the  power  of  dynamite  as  an 
explosive  substance.  While  this  kind  of  testimony  may  not  have 
been  very  material,  we  cannot  see  that  it  was  to  such  an  extent 
incompetent  as  to  justify  a  reversal. 

No,  it  is  not  pretended  that  every  error  is  enough  of  itself  to 
justify  a  reversal,  but  when  the  errors  are  multitudinous,  as  they 
are  in  this  case,  a  new  trial  ought  to  have  been  allowed.  The 
power  of  dynamite  as  an  explosive  substance  was  not  in  issue.  It 
was  conceded  that  dynamite  was  an  explosive  substance,  and  that 
a  dynamite  bomb  killed  Began.  The  jury  knew  that  dynamite  was 
an  explosive  substance.  They  knew  it  as  well  before  the  torn  and 
bloody  clothing  was  exhibited  as  they  did  afterward.  Mark  Antony 
could  as  pertinently  say  that  he  showed  the  rent  vesture  of  Caesar 
to  convince  the  people  that  daggers  had  the  power  to  cut.  The 
excuse  fails;  the  purpose  of  the  exhibition  is  too  plain. 

The  counsel  for  the  state  were  permitted  to  put  leading  ques- 
tions to  their  own  witnesses,  notably  to  Gilmer,  the  most  rickety 
witness  of  all.  He  swore  that  he  saw  the  l)omb  thrown  and  could 
recognize  the  man  who  threw  it.  A  portrait  of  Schnaubelt  was 
handed  to  him  and  he  was  asked  if  that  was  the  man.     His  answer 


THE  TRTAI.  (^F  THE  JUDGMENT. 


was:  "I  say  that  is  the  man  that  threw  the  bomb  out  of  the  alley." 
The  question  was  leading,  for  it  lead  the  witness  to  the  desired  an- 
swer, y.es.  The  offer  of  the  picture  by  itself  for  identification  was 
unfair.  It  should  have  been  mixed  with  others  and  the  witness  re- 
quired to  select  the  portrait  of  Schnaubelt,  without  aid  or  suggestion 
from  anybody.  So  he  was  permitted,  in  a  theatrical  way,  to  point 
out  Spies  as  the  man  who  lighted  the  fuse.  This  was  all  done  after 
the  style  and  manner  of  the  minor  theaters  where  the  villain  of  the 
play  is  accidentally  identified  by  a  stranger  who  suddenly  appears 
upon  the  scene.  It  is  amazing  that  the  Supreme  Court  allowed  it- 
self to  be  imposed  upon  by  this  bit  of  melodrama.  Here  is  the 
way  the  scene  is  described  in  the  written  opinion  : 

When  shown  a  photogragh  of  Schnaubelt,  he  said  :  "  I  say  that 
is  the  man  that  threw  the  bomb  out  of  the  alley."  When  asked  who 
the  man  was  that  came  from  the  wagon  towards  the  group  referred 
to,  and  lighted  the  match,  he  pointed  to  the  defendant  Spies,  and 
said,  "  That  is  the  man,  right  there." 

This,  if  natural,  would  be  impressive,  but  it  was  entirely  mechan- 
ical and  artificial.  As  the  mummery  of  stage  identification  is  re- 
hearsed behind  the  scene,  so  was  this.  The  witness  had  rehearsed 
his  part,  and  very  likely  had  studied  the  picture.  It  had  been 
shown  to  the  witnesses  for  the  state  by  the  assistant  district  attorney, 
in  his  own  office,  and  it  is  morally  certain  that  it  had  been  shown  to 
(iilmer.  So,  as  to  Spies.  Gilmer  had  seen  the  prisoners  day  after 
(lay,  and  knew  them  all.  A  performance  which  could  impress  a 
calm  judicial  body  like  the  Supreme  Court  must  have  made  a  still 
greater  impression  on  the  jury. 

It  is  shown  by  a  chain  of  impartial  circumstances  that  the  testi- 
mony of  Gilmer  cannot  possibly  be  true.  He  is  contradicted  by 
the  positive  testimony  of  a  great  many  witnesses  for  the  defense.' 
He  is  contradicted  by  the  negative  testimony  of  witnesses  for  the 
prosecution.  His  testimony  and  theirs  cannot  be  reconciled.  His 
testimony  is  inconsistent  with  itself,  and  it  is  contradicted  by  inani- 
mate witnesses  that  cannot  lie — the  street,  the  alley,  the  houses  in 
the  neighborhood  of  the  tragedy,  the  wagon,  the  pile  of  lumber,  and 
the  stature  of  Schnaubelt.  These  all  bear  witness  that  the  testi- 
mony of  Gilmer  is  not  true.  It  is  impossible  that  the  counsel  for  the 
state  could  have  believed  it  at  the  close  of  the  trial,  though  they 
mav  have  believed  it  at  the  bcLdnning.      Notwithstanding  its  demon- 


A  REVIEW  OK  THE  AXARCHIST  CASE.  i^ 


strated  falsity  the  testimon)-  of  (rilmer  was  ]jlayeil  on  the  jur\-  with 
great  ingenuity.  It  was  reinforced  froni  Des  Moines  so  tluit  it 
might  last  until  the  rendition  of  tlie  verdict.  Its  importance  to  the 
state  was  very  great,  for  it  was  the  only  thread  that  connected  a:iv 
one  of  the  defendants  with  the  actual  throwing  of  the  bomb,  and 
though  it  was  weak  as  the  thread  of  smoke  that  rises  from  the  l)urn- 
ing  end  of  a  cigar,  it  pUiyed  an  awful  ])art  in  the  doom  of  seven 
men.  More  than  any  other  part  of  the  secondary  e\-idence,  it  con- 
trolled tlie  jury;  and  although  the  Supreme  Court  evidently  dis- 
trusted it.  and  even  disbelieved  it,  the  tremendous  judgment  of  the 
court  tries  to  rest  upon  it.  l^neasy  there,  it  throws  the  responsi- 
bility u]:)on  the  jury,  and  seeks  a  foundation  somewhere  else.  Here 
is  the  nervous  ex]jression  of  the  court  : 

There  is  a  mass  of  testimony  in  the  record  in  reference  to  the 
statements  made  by  Thompson  and  Gilmer.  Some  of  this  testi- 
mony sustains  those  statements  and  some  of  it  discredits  them.  It 
is  sufificient  to  say  that  it  is  very  conflicting.  It  w^as  the  province 
of  the  jury  to  pass  upon  it.  They  had  a  right  to  consider  it  in  con- 
nection with  all  the  other  facts  and  circumstances  in  the  case.  It 
is  not  necessary  for  us  to  pass  any  opinion  upon  it,  as  we  think 
there  is  evidence  enough  in  the  record  to  sustain  the  finding  of  the 
jury  independently  of  the  testimony  of  Thompson  and  Gilmer. 

In  the  i)resence  of  reasoning  like  that  the  imperilled  citizen 
stands  paralyzed  and  helpless.  If  it  is  no-t  necessary  to  pass  anv 
opinion  upon  disputed  testimony  wdiich  influenced  a  jury  to  con- 
demn seven  men  to  death,  then  such  a  duty  never  can  be  necessary 
in  any  case.  "  Xot  necessary  to  pass  any  opinion  I  "  Whv,  one 
thousand  words  of  the  decision  is  given  to  the  testimony  of  Gilmer 
alone.  And  every  word  of  the  thousand  is  an  expression  of  opin- 
ion. Every  word  of  it  is  adverse  to  the  defendants,  and  the  bene- 
fit of  every  doubt  is  given  to  the  state.  In  those  thousand  words 
are  these  : 

Witnesses  for  the  defense  identified  mostly  with  the  Interna- 
tional organization,  and  from  whom  the  shots  fired  at  the  police 
must  have  come. 

What  is  that  but  the  expression  of  an  opinion  adverse  to  the 
witnesses  who  contradicted  Gilmer?  It  is  hardly  a  judicial  ex- 
pression either,  for  it  shows  feeling  on  the  part  of  the  court.  The 
genuine  opinion  of  the  Supreme  Court  that  the  testimony  of  Gilmer 
was  worthless  glimmers    in    the    concluding   sentence.     "There  is 


THE  TRIAL  OF  THE  JUDGMENT. 


enough  to  sustain  the  finding  independently  of  the  testimony  given 
by  Thompson  and  Gilmer." 

THE    PROVINCE    OF    THE    JURY. 

Wherever  the  evidence  is  weak,  false,  contradictory,  improbable, 
or  impossible,  redress  is  denied  on  the  ground  that  it  was  '•  the 
province  of  the  jury"  to  act  upon  it  in  their  own  way.  The  testi- 
monv  is  important  if  true,  reasons  the  Supreme  Court,  unimportant 
if  false  ;   there  is  enough  without  it. 

In  that  very  dangerous  way,  a  jury  manifestly  unfriendly  to  the 
defendants  is  made  sole  critic  of  the  evidence.  It  is  in  the  appeal 
of  the  defendants  that  the  jury  itself  was  not  "  impartial,"  that  it 
was  a  class  jury,  not  fairly  chosen  from  "  the  body  of  the  county," 
that  care  was  taken  to  select  persons  hostile  to  the  accused  even 
from  the  classes  drawn  upon,  and  that  the  state  was  allowed  a  greater 
number  of  challenges  than  the  law  intended;  a  number,  which, 
whether  legal  or  not,  gave  the  prosecution  an  unfair  advantage.  Yet 
this  jury  is  given  absolute  ownership  of  the  evidence  in  the  case,  to 
use  it  at  their  own  discretion  for  one  side  and  against  the  other, 
even  to  the  hanging  of  seven  men.  The  Supreme  Court  abdicates 
its  power  to  pass  upon  the  character,  quality,  and  sufficiency  oi 
evidence  in  the  most  important  case  ever  tried  in  the  state  of 
Illinois.  This  in  tiresome  phraseology  repeated  over  and  over 
again. 

''The  jiirx  were  warranted  in  believing:;  i'^^iV'Cvi.Q  bomb  was  made 
b\-  Lingg;  "  "  tlie  jury  were  warranted  in  believing  that  the  Haymar- 
ket  meeting  was  not  intended  to  be  peaceable;  "  "  the  jury  were  war- 
ranted in  believing  that  the  bomb  was  thrown  and  the  shots  fired  as 
a  part  of  the  execution  of  the  conspiracy;  "  " //  was  for  the  Jury  to 
sav  whether  the  evidence  for  the  defense  was  more  worthy  of  belief;  " 
"  the  Jury  had  the  right  to  look  at  it  in  the  light  of  the  principles  ad- 
vocated by  the  International  organization;  "  "//  7vas  for  the  jury  to 
say  how  far  that  fatal  result  may  have  been  brought  about  through 
the  influence  of  the  utterances  put  forth  by  the  organs  here  desig- 
nated;" ^'  tlie  jiirx  -ivere  warranted  in  believing  that  Parsons  was  as- 
sociated with  the  man  who  threw  the  bomb;  "  ''  it  was  for  the  jury 
/y  j-av' whether  any  others  than  the  members  of  that  conspiracy  had 
undertaken  to  make  such  weapons;"  and  so  on,  in  monotonous 
formulary,  page  after   page.     A  jury   which    the   defendants  allege 


A  RF.VIEW  OF    rilK  ANARCIIIS  r  CASE. 


was  not  impartial  is  made  infallible  judge  of  the  legal  and  moral 
(.juality  of  all  the  evidence. 

In  selecting  a  jury  to  try  the  anarchists  the  jjrinciple  of  impar- 
tiality was  violated.  The  form  of  the  statute  may  have  been  ob- 
served, but  the  spirit  of  the  law  was  not.  AVhole  classes  of  quali- 
fied i)ersons  were  stricken  from  the  jury  lists,  or  at  least,  they  were 
not  summoned  in  the  case,  which  amounts  to  the  same  thing.  Un- 
fortunately these  were  what  are  known  as  the  "  working  classes," 
the  classes  to  which  the  defendants  belonged,  and  of  which,  in  part, 
they  were  supposed  to  be  representative  in  socialistic  and  political 
opinions.  These  were  disqualified  for  jurymen  as  effectually  as  if 
they  had  been  disfranchised  altogether.  The  whole  machinery  of 
legal  administration  was  in  the  hands  of  the  prosecution;  and  a 
common  bailiff,  a  subordinate  part  of  that  machinery,  was  made 
absolute  dictator  and  autocrat  of  a  jury.  The  honest  safeguard 
known  as  "drawing"  for  a  jury  was  not  observed.  The  equal 
chance  which  the  "  drawing  "  of  jurors  from  a  list  of  disqualified 
voters  gives  to  both  sides  was  not  given  to  the  defendants.  The 
jurors  were  not  "  drawn,"  but  "  summoned."  They  were  summoned 
b\  a  mere  bailiff,  man  by  man,  at  his  own  arbitrary  will  and  pleasure. 
After  he  had  strained  and  filtered  the  jury  population  of  every 
man  belonging  to  the  same  classes  as  the  defendants,  the  prosecu- 
tion was  allowed  to  filter  even  his  unfair  selection  by  120  peremptory 
challenges.  Even  of  the  twelve  who  tried  the  case,  nine  confessed 
themselves  prejudiced  against  socialists,  anarchists,  and  commun- 
ists, while  some  of  them  even  admitted  that  they  were  preju- 
diced against  the  defendants.  Yet  this  is  the  jury  "  whose  province 
it  was  "  to  pass  upon  all  the  evidence,  and  who  were  "  warranted  in 
believing  "  anything  against  the  defendants.  To  hang  men  on  the 
\erdict  of  a  jury  thus  chosen  and  impanelled  will  be  a  stain  upon 
the  jurisprudence  of  Illinois  long  after  all  the  actors  in  the  drama 
shall  have  passed  away. 

The  above  criticism  on  the  jury  that  tried  the  anarchists,  was 
published  a  week  before  their  execution  in  the  pamphlet  entitled 
"  Was  it  a  Fair  Trial  ?  "  A  month  after  their  execution,  the  judges 
of  Chicago,  humiliated  and  ashamed,  virtually  acknowledged  the 
justice  of  the  criticism,  and  recommend  that  the  mode  of  selecting 
jurors  be  reformed.  Awed  and  conscience-stricken  they  advise  the 
restoration  of  trial  by  jury  in  Chicago.     In   their  argument  for  a 


THE  TRIAL  OF  THE  TUDGMENT. 


changt  of  system,  they  practically  confess  that  trial  by  jury,  in  its 
constitutional  meaning,  has  been  abolished  in  Illinois.  When  they 
wrote  the  following  manifesto  they  must  have  had  before  them  a 
vision  of  seven  men  illegally  condemned  to  die.  It  \i2i  post-mortem 
reversal  of  the  judgment  of  the  Supreme  Court.  The  words  of  it 
wander  through  the  haunted  cells  of  the  county  jail  like  the  moan 
of  a  repentance  that  comes  too  late.  They  are  not  anarchists,  but 
Chicago  judges,  who  say  : 

The  jury  system  is  7'aluableiusofarasityields  impartial  juries,  and 
-tL'/ien  it  does  so  it  is  invaluable  ;  when  it  fails  to  do  this  it  is  pernicious 
and  dangerous.  To  be  impartial  the  jury  should  be  selected  from 
all  honest  walks  of  life — fro?n  the  body  of  the  people — and  in  such 
manner  as  to  preclude  their  being  selected  or  excluded  because  of 
race,  color,  creed,  or  political  opinions.  This  can  be  done  by  using 
a  method  of  selection  in  accord  with  existing  provisions  of  the  law, 
and  that  will  prevent  any  of  the  public  agents  charged  with  the  duty 
of  furnishing  jurors  for  courts  from  saying  beforehand  what  indi- 
viduals are  to  be  placed  on  or  debarred  from  the  jury  list. 

All  citizens  possessing  the  legal  qualifications  of  competent 
jurors  prescribed  by  the  statute  constitute  the  body  of  the  people 
from  which  trial  juries  should  be  drawn.  The  following  suggestions 
show  how  this  can  be  done,  and  done  in  such  a  way  that  impartial- 
ity and  honesty  can  be  secured.  Taking  the  precincts  one  by  one, 
write  the  names  and  residences  of  all  the  voters  of  a  precinct  on 
separate  cards  and  place  these  in  a  box,  and,  in  the  presence  of  a 
committee  from  the  county  board  and  the  county  clerk,  let  there  be 
dratan  from  the  box,  diiiex  the  cards  bearing  the  names  have  been 
well  shaken  up,  a  number  of  the  names  equal  to  one-tenth  of  the 
whole  number  in  the  box.  The  cards  bearing  the  names  and  resi- 
dences of  the  one-tenth  of  the  whole  body  of  the  citizens  thus  se- 
lected from  each  and  every  precinct  in  the  county  to  constitute  the 
jury  list,  all  to  be  placed  in  a  large  box,  to  be  known  as  the  jury- 
box,  to  be  provided  for  that  purpose,  the  same  to  be  then  thoroughly 
shaken,  such  a  box  to  be  in  the  custody  of  the  county  clerk.  There- 
after the  clerks  of  the  various  courts,  as  jurors  are  needed  for  the 
term  or  on  special  venire  (if  the  court  directs)  are  to  proceed  to  the 
county  clerk's  office  and  draw  at  random,  a  sufficient  number  of 
names  from  said  box,  as  provided  by  section  8  of  the  statute  on 
jurors. 

When  the  jurors  appear  in  court  the  judge  is  to  examine  all  un- 
der oath,  both  as  to  qualifications  and  to  pass  upon  excuses,  and  to 
dismiss  all  who  do  not  appear  to  have  the  necessary  qualifications  and 
all  who  do  not  appear  to  have  reasonable  and  proper  excuses.  The 
bailiff  in  each  court  is  to  be  furnished  with  a  small  box  in  which 
the  cards  bearing  the  names  of  the  jianel  of  jurors  are  to  be  placed 


A  REVIEW  OF  THE  ANARCHIST  CASE.  23 


and  the  jury  to  be  called  by  drawing  these  cards  one  hy  one  at  ran- 
dom from  this  box.  In  this  way,  and  in  this  way  only,  can  juries  be 
secured  in  accordance  with  the  provisions  of  the  jury  system.  This 
jury  list,  thus  selected,  will  be  sufficient  for  about  two  years  or  more. 
We  submit  this  plan  to  the  honorable  board  of  county  commis- 
sioners, with  our  approval,  satisfied  that  it  is  feasible  and  fair.  The 
idea  of  selecting  at  random  from  all  the  names  furnished  by  the 
court  commissioners  is  in  force  in  the  United  States  courts  in  this 
district,  and  gives  satisfaction.  All  who  are  exempt  and  disqualified 
by  statute  to  be  stricken  from  the  list. 
\\'e  approve  the  foregoing  : 

RicHARiJ  Pkf.nder(;as  !', 
Richard  S.  1'uthili., 
John  P.  Altgeld, 

ROLLIN  S.   WlLLlA.MSOX, 

Frank  Baker. 

This  memorial  is  not  only  a  concession,  but  a  claim  that  the 
jury  in  the  anarchist  trial  was  unfair.  The  words  in  italics  are  an 
eloquent  condemnation  of  that  jury,  of  the  despotic  agencies  that 
contrived  it,  and  of  all  the  judicial  and  executive  magistrates  who 
affirmed  and  ratified  its  mad,  revengeful  judgment.  The  jury  was 
not  "  impartial,''  it  was  not  selected  ^\from  tiic  body  of  tlie people,''  it 
wii.%  xvo\.  ''  drajuii  from  i lie  box, ^'  \X.  was  not  '' dra-wn  at  random,"  it 
was  not  '•drawn"  at  all.  It  was  summoned  by  a  mere  bailiff, 
charged  with  a  mission  of  death,  a  subordinate  official  who  was 
actually  invested  with  the  very  power  which  those  five  judges  de- 
clare to  be  "  pernicious  and  dangerous,"  the  power  of  "  saying  be- 
forehand what  individuals  are  to  be  placed  on  or  debarred  from  the 
jury  lists." 

WAS     THE    JURV    PACKED? 

Judge  Prendergast,  in  urging  the  reform  in  the  jury  system,  said: 
"  There  is  no  more  reason  why  a  clerk  or  bailiff  should  select  jurors 
than  that  they  should  select  judges."  There  is  hardly  a  lawyer  in. 
Illinois,  off  the  Supreme  bench,  who  will  not  agree  with  Judge  Pren- 
dergast in  that  opinion;  and  the  force  of  it  is  increased  when  he 
reminds  us  that  in  Illinois  the  jurors  in  criminal  cases  are  invested 
with  judicial  powers,  being  judges  both  of  the  law  and  the  facts. 
Those  five  judges  will  agree  that  the  jurisprudence  of  Illinois  must 
suffer  a  long  term  of  reproach  because  in  the  anarchist  case  a 
bailiff  actually  did  select  the   jurors;  and  it   is   charged   upon   him 


THE  TRIAL  OF   THE  JUDGMEXT. 


that  he  actually  did  "select"  them  in  the  sense  of  picking  them  out 
for  a  special  and  a  fatal  purpose. 

That  the  bailiff  had  the  power  to  pack  the  jury  is  not  denied  by 
anybody;  that  he  did  pack  the  jury  is  disputed,  but  the  evidence 
against  him  is  very  strong;  that  he  said  he  would  pack  the  jury  is 
charged  by  affidavit  of  Otis  Favor,  a  citizen  of  Chicago,  personally 
acquainted  with  the  bailiff.  This  affidavit  has  not  yet  been 
answered  by  a  counter  affidavit,  and  the  presumption  arises  that  it 
is  true.  That  the  trial  court  denied  an  application  for  leave  to  ex- 
amine Otis  Favor  as  a  witness  to  the  misconduct  of  the  bailiff  is 
confessed  and  admitted  in  the  record.  In  justice  to  all  the  parties 
concerned  it  is  only  fair  that  the  whole  matter  of  the  bailiff's 
alleged  misconduct  should  be  impartially  set  forth. 

Otis  Favor  is  a  man  of  high  character  and  standing,  doing  bus- 
iness in  Chicago,  and  he  was  personally  well  acquainted  with  Ryce, 
the  bailiff.  After  the  trial  was  over  Favor  told  Mr.  E.  A.  Stevens 
that  when  Ryce  was  selecting  the  jury  he  said  to  Favor,  in  sub- 
stance this  :  "I  am  managing  this  case  and  I  know  what  I  am 
about.  Those  fellows  will  hang  as  certain  as  death.  I  am  summon- 
ing as  jurors  such  men  as  they  will  be  compelled  to  challenge,  and 
when  they  have  exhausted  their  challenges,  they  will  have  to  take 
such  a  jury  as  is  satisfactory  to  the  state."  Stevens  made  affidavit 
that  Favor  told  him  this  in  private  conversation.  Thereupon  de- 
fendants, in  their  application  for  a  new  trial,  asked  that  Favor  be 
summoned  and  examined  as  to  the  alleged  boast  of  Ryce.  This 
application  was  refused,  the  judge  deciding  that  the  court  had  no 
power  to  order  the  attendance  at  that  time  of  Otis  Favor.  It  should 
be  stated  here  that  Mr.  Favor  refused  to  appear  and  testify  or  to 
make  any  affidavit  unless  required  to  do  so  by  an  order  of  the 
court.     The  order  was  refused.      He  made  the  affidavit  afterward. 

In  denying  his  power  to  command  the  attendance  of  Otis  Favor 
the  judge  was  certainly  wrong.  The  constitution  provides  that  de- 
fendants in  criminal  cases  shall  have  compulsory  process  for  the  at- 
tendance of  their  witnesses.  Motions  for  a  new  trial  are  generally 
supported  by  the  affidavits  of  witnesses,  and  if  a  person  who  has 
knowledge  of  any  matter  valuable  to  the  motion  refuses  to  appear 
and  testify,  he  may  be  compelled  to  do  so.  The  courts  have  al- 
ways exercised  the   jiower   to  bring  him  to   the   witness   stand  by 


A  REVIEW  OV  Till-:  ANARCHIST  CASE.  25 


"compulsory  process."     Without  this   power  courts  would  be   de- 
prived of  half  their  jurisdiction. 

The  state's  attorney,  knowing  that  the  judge  had  made  a  mistake 
in  ruling  that  the  court  had  no  power  to  compel  Otis  Favor  to 
appear  and  testify,  deserted  his  friend  and  abandoned  in  the  Su- 
preme Court  the  erroneous  ruling  which  he  had  taken  advantage  of 
in  the  court  below.  He  left  it  outside  on  the  door  step,  like  an 
illegitimate  waif,  and  substituted  another  reason  for  it.  He  said 
that  it  was  a  matter  in  the  discretion  of  the  court  and  that 

The  court  exercised  the  proper  discretion  in  refusing  to  have 
anything  to  do  with  it,  because  no  injury  and  no  prejudice  had  re- 
sulted from  the  alleged  conduct  of  said  bailiff  against  any  defend- 
ant. 

He  knew  when  he  wrote  that  in  his  brief  that  the  jury  thus  un- 
fairly chosen  by  the  bailiff  had  actually  condemned  seven  men  to 
death.  A  mere  trifle,  your  honors,  a  mere  trifle,  from  which  "  no 
injury  and  no  prejudice  has  resulted." 

Still  feeling  insecure,  the  state's  attorney,  with  daring  hardihood, 
confessed  the  accusation  he  was  unable  to  deny.  With  a  brazen 
effrontery  that  reminds  us  of  the  crown  prosecutors  of  the  olden 
time,  he  asserted  that  the  bailiff'  acted  well.  Quoting  the  charge 
against  Ryce,  he  said  : 

There  is  nothing  objectionable  in  all  this,  if  true,  and  it  means 
simply  that  R}ce  was  endeavoring  to  summon  intelligent  and  com- 
petent jurors,  against  whom  no  ground  of  objection  and  no  cause 
of  challenge  could  be  laid.  The  statute  says  that  he  shall  summon 
persons  having  "  the  qualifications  of  jurors,"  etc.  Did  counsel  ex- 
pect him  to  summon  disqualified  and  incompetent  jurors? 

The  boast  of  Ryce  was  that  he  was  summoning  such  jurors  as 
the  defendants  would  be  "  compelled  to  challenge  ;  "  the  state's  at- 
torney says  that  this  "  simply  means  that  he  was  endeavoring  to 
secure  jurors  against  whom  no  cause  of  challenge  could  be  laid." 
Such  wrenching  of  words  and  distortion  of  their  meaning  could 
only  be  ventured  on  by  an  attorney  confident  that  the  court  was 
with  him,  and  that  his  case  was  safe. 

In  the  Creator's  code  of  moral  government  it  is  provided  that 
some  peculiar  offenders  shall  execute  retributive  justice  upon  them- 
selves. This  was  the  fate  of  the  state's  attorney  who  tried  the  an- 
archists.    He  was  compelled  to  stultify    himself  while  his  enemies 


THE  TRIAL  OF  THE  TUDGMENT. 


laughed  at  his  humiliation.  Shortly  after  justifying  the  conduct  of 
Ryce  the  bailiff,  it  became  the  duty  of  Mr.  Grinnell  to  try  a  batch 
of  county  commissioners  charged  with  corruption  in  office.  An- 
other bailiff  Avas  now  in  power  exercising  the  "  7'icioiis  and  danger- 
ous" privilege  of  "  summoning  "  the  jury.  All  at  once  the  state's 
attorney  suspected  that  the  bailiff  was  packing  the  jury,  not  for 
the  state,  but  for  the  defendants.  Instantly  he  reversed  himself  and 
contended  eagerly  for  the  doctrine  he  had  so  recently  condemned. 
His  plea  to  the  court  was  a  retort  upon  himself.  He  complained 
that  the  bailiff  was  acting  unfairly  to  the  prosecution,  and  begged 
the  judge  to  order  certain  persons  to  be  examined  in  open  court  in 
support  of  his  charge  against  the  bailiff.  His  request  was  granted, 
and  the  result  was  that  three  men  were  stricken  from  the  jury, 
although  they  had  been  actually  accepted  in  the  manner  prescribed 
bylaw.  It  was  highly  meritorious  in  the  bailiff  who  "selected" 
a  jury  hostile  to  the  anarchists,  but  very  reprehensible  in  another 
bailiff  to  select  a  jury  favorable  to  the  commissioners.  Had  he 
packed  the  jury  against  the  commissioners,  the  attorney  would  have 
said  that  the  bailiff  "was  endeavoring  to  summon  intelligent  and 
com])etent  jurors  against  whom  no  ground  of  objection  could  be 
laid." 

The  Supreme  Court  adopted  the  argument  and  very  nearly  the 
phraseology  of  the  state's  attorney  in  the  matter  of  the  bailiff. 
They  say  this  : 

The  refusal  of  the  court  to  grant  the  application  is  competent. 
The  statements  in  the  affidavit  were  mere  hearsay,  and  were  too  in- 
definite and  remote  to  base  any  action  upon.  Moreover,  if  Mr. 
Ryce  did  make  the  remark  to  Favor  it  does  not  appear  that  defend- 
ants were  harmed  by  it.  There  is  nothing  to  show  that  Ryce  made 
any  remarks  of  any  kind,  proper  or  improper,  to  the  jurors  he  sum- 
moned. 

In  those  sentences  there  may  be  observed  a  style  of  judicial 
]jlea(ling  that  Supreme  Courts  do  very  seldom  condescend  to  now. 
True,  the  statements  in  the  affidavit  of  Stevens  were  hearsay,  but 
the\'  were  a  proper  foundation  for  an  order  compelling  Favor  to 
testify,  and  his  statements  would  be  original  testimony,  and  legal 
evidence.  Affidavits  based  on  hearsay  have  always  been  used  as  a 
foundation  for  the  process  of  the  courts.  Scarcely  a  day  passes  in 
any  court  where  they   are  not  employed.     ''As  affiant  has  beeti  in- 


A   RKAIFAV  OK    TllK   AN  AR( 'I  IIS'I'  CASK. 


formed  and  believes"  is  a  tonmihi  in  constant  use.  XdI  to  ac:l  upon 
it  because  it  is  only  "  hearsay  "  would  be  what  never  has  been,  an 
abdication  by  the  courts  of  their  power  to  perform  that  for  which 
they  were  instituted,  which  is  to  ha\-e  justice  done.  Such  affidavits 
— and  even  beliefs  unsworn  to — were  held  sufficient  foundation  for 
the  introduction  of  evidence  concerning  the  misconduct  of  the 
bailiff  in  the  case  of  the  count}'  commissioners,  and  whv  woi  in  the 
case  of  the  anarchists  ? 

The  plea  of  the  Supreme  Court  that  it  does  not  appear  that  the 
defendants  were  harmed  by  the  remark  of  Ryce  to  Favor,  and  that 
there  is  nothing  to  show  that  R\cesaid  anything  to  the  jurors  whom 
he  summoned  is  an  ancient  manoeuvre  in  sophistry.  It  is  useful  to 
divert  the  argument  and  send  it  in  a  wrong  direction.  In  fo.\  hunt- 
ing times  it  was  figuratively  called  "  throwing  the  hounds  off  the 
scent."  A  fellow  with  a  red  herring  in  his  pocket  could  trail  the 
dogs  away  off  to  the  north  while  the  fox  was  running  to  the  south. 
It  is  the  affectation  of  ignorance  to  pretend  that  the  defendants 
claimed  that  harm  was  done  to  them  by  the  remark  of  Ryce  to 
Favor.  The  Supreme  Court  knew  better.  The  complaint  of  the 
defendants  was  that  they  were  harmed  by  the  packing  of  the  jurv, 
of  which  the  remark  of  Ryce  to  Favor  was  merely  evidence,  an 
acknowledgement,  and  a  boast.  Neither  did  they  claim  to  be 
injured  by  anything  said  by  Ryce  to  the  jurors  whom  he  summoned. 
The  complaint  was  that  the  jurors  themselves  were  picked  and  the 
jury  packed.  They  objected  to  what  Ryce  did,  not  what  he  said. 
They  complained  that  Ryce  summoned  a  jury  not  to  try  them,  but 
to  hang  them.  The  acts  of  Ryce  are  not  to  be  obscured  by  a 
cloud  of  controversy  as  to  what  he  said. 

The  Supreme  Court  intimates  that  it  was  necessary  to  show  that 
the  defendants  were  actually  harmed  by  the  illegalities  and  errors 
they  complained  of  in  relation  to  the  jury.  The  court  may  make 
that  ruling  a  precedent,  but  never  can  make  it  law.  It  is  not  any- 
where in  Christendom  that  a  man  condemned  to  die  shall  show  in 
his  appeal  that  he  was  harmed  by  the  selection  of  a  partial,  preju- 
diced, or  illegal  jury.  The  sentence  of  death  runs  through  all  the 
record,  and  is  of  itself  an  omnipresent  showing  of  harm.  The  law 
presumes  harm  to  every  man  sentenced  to  death  by  a  vitiated  or 
illegal  jury.  Suppose  that  Ryce  had  selected  persons  disqualified 
and  incompetent  by  law,  and  that  one  of  those  persons  had  actually 


28  THE  TRIAL  OF  THE  JUDGMENT. 

served  upon  the  jury,  will  the  Supreme  Court  pretend  that  a  man 
condemned  to  death  by  a  jury  thus  imperfect,  must  show  that  he 
has  been  harmed  by  the  wrongful  selection,  before  he  can  take  ad- 
vantage of  the  error?  The  error  being  shown,  the  law  raises  a  con- 
clusive presumption  of  harm  to  the  defendant.  There  may  be 
error  without  prejudice  even  in  capital  cases,  but  in  the  anarchist 
case  there  was  too  much  of  it.  It  was  grim  sport  to  mock  men  on 
the  steps  of  the  gallows  by  telling  them  that  they  were  not  harmed 
by  the  errors  and  illegalities  perpetrated  at  their  trial.  What  greater 
harm  can  befall  a  man  than  to  die  upon  the  scaffold? 

The  Supreme  Court  pieced  out  the  case  for  the  prosecution  by 
the  following  amendment  : 

In  addition  to  this,  it  is  not  shown  that  the  defendants  served 
Favor  with  a  subpoena,  so  as  to  lay  a  foundation  for  compelling  his 
attendance. 

This  curious  reason  never  presented  itself  either  to  the  district 
attorney,  or  the  court  below.  Naturally  it  would  not,  because  the 
defendants  had  no  power  to  serve  Favor  with  a  subpoena.  The 
trial  was  over;  they  had  no  case  before  the  court  except  a  motion 
for  a  new  trial,  supported  as  to  matters  outside  the  record  by  affi- 
davit. They  could  not  introduce  unwilling  testimony  to  sustain 
the  motion  except  by  order  of  the  court,  and  this  order  they  were 
seeking  to  obtain.  Their  showing  was  that  Favor  would  not  volun- 
tarily give  evidence,  nor  make  affidavit,  and  they  prayed  the  court 
to  order  a  subpcena  to  be  served  upon  him  that  he  might  be  com- 
pelled to  appear  and  testify. 

When,  on  the  9th  of  November,  intercession  was  made  to  the 
governor  for  a  commutation  of  the  sentence,  this  accusing  affidavit 
was  read  to  him  by  Capt.  Black.  He  was  evidently  unprepared  for 
it,  and  it  startled  him  like  a  sting  of  electricity.  He  had  steeled 
himself  against  everything  but  the  clamor  of  the  irrational  crowd, 
and  his  heart  was  closed.  With  strong  self-discipline  he  had  nerved 
himself  to  show  no  sign  of  human  feeling,  but  this  affidavit  stirred 
him  beyond  control,  and  in  a  moment  of  emotion  he  exclaimed, 
"Was  that  statement  offered  in  court?"  Being  assured  that  it  was, 
he  saw  that  he  had  betrayed  himself  into  the  hands  of  amnesty. 
He  escaped  again  in  a  moment  and  showed  no  further  symptoms  of 
palpitation  of  the  heart.  He  retired  into  his  gloomy  fortifications, 
and  there  he  shut  himself  up  until  the  end,  deaf  to   reason,  justice. 


A  RFA'IEW  OF  THE  .\N.\K(  HIST  CASE. 


29 


law,  mercy  and  religion.  That  morning  he  offered  a  very  good  re- 
semblance to  King  George  IV.  as  he  is  described  in  the  satire  of 
Thomas  Moore  : 

His  table  strewed  with  tea  and  toast. 
Death  warrants  and  the  Morniiii:;  Post. 

He  dismissed  the  pleading  delegations,  and  the  next  day  he  sent 
the  death  warrants  to  Chicago. 

THE    CASE    OF    DANIEL    O'CONNELL. 

In  the  O'Connell  case  the  defendants  were  tried  in  Dublin  for  a 
conspiracy  to  overthrow  the  British  government  in  Ireland.  They 
were  all  convicted  and  sentenced  to  fine  and  imprisonment.  The 
judgment  was  reversed  by  the  English  house  of  lords,  on  two 
grounds,  one  of  which  was  that  the  jury  had  not  been  fairly  selected, 
for  that  certain  classes  of  jurymen  had  been  omitted  from  the  ^'ury 
roll.  The  manner  of  doing  it  was  this:  The  recorder  of  Dublin 
had  made  out  the  jury  lists  as  required  by  law,  and  had  returned 
them  to  the  sheriff  as  his  duty  was.  From  the  sheriff's  office  one 
list  containing  sixty  names  mysteriously  disappeared.  Of  the  de- 
fendants, seven  were  Roman  catholics,  and  by  a  curious  coincidence 
it  so  happened  that  the  missing  list  was  a  list  of  Roman  catholic 
jurymen,  and  by  reason  of  its  absence  no  Roman  catholic  was 
placed  upon  the  trial  jury.  In  other  words,  men  of  the  same  re- 
ligion as  the  defendants  were  excluded  from  the  jurv.  The  de- 
fendants challenged  the  array,  but  their  challenge  was  overruled  for 
the  reason  that  no  fraud  or  misconduct  was  charged  against  the 
sheriff,  and  for  all  that  appeared,  the  missing  list  might  have  been 
lost  by  accident.  The  house  of  lords  reversed  that  ruling  and 
decided  that  the  injury  and  wrong  to  the  defendants  were  the  same 
whether  the  list  was  absent  by  accident  or  design. 

It  was  in  passing  judgment  in  this  case  that  Lord  Chief  Justice 
Denman  used  that  remarkable  sentence  which  has  passed  into  our 
proverbial  classics,  "A  mockery,  a  delusion  and  a  snare."  ^\'hat 
he  said  was  this: 

If  it  is  possible  that  such  a  practice  as  that  which  has  taken 
place  in  the  present  instance  should  be  allowed  to  pass  without 
remedy,  trial  by  jury  itself,  instead  of  being  a  security  to  persons  10/10 
are  accused,  will  be  a  mockery,  a  delusion  and  a  snare. 


THK  TRIAL  OF  THE   lUDC.MEXT 


In  regard  to  the  sheriff's  responsibility  for  the  loss  oi  the  jury- 
list.  Lord  Denman  said: 

The  defendants  have  challenged  the  array  on  account  of  the 
fraudulent  omission  of  sixty  names  from  the  list  of  jurors  of  the 
county  of  Dublin.  It  appears  to  me  that  that  challenge  ought  to 
have  been  allowed.  I  think  that  the  principle  of  challenge  to  the 
array  is  not  confined  to  the  narrow  issue  whether  the  sheriff  has 
done  wrong,  ^///  involves  that  larger  question  whether  the  party  has 
had  the  security  of  trial  by  a  la%vful  jury  of  his  country. 

To  allow  a  judgment  to  stand  on  a  verdict  rendered  by  such  a 
jury,  Lord  Denman  said  : 

Would  have  the  effect  of  securing  success  to  the  worst  maneuvres, 
and  of  unsettling  public  confidence  in  the  most  important  function 
of  justice. 

In  the  O'Connell  case  only  fine  and  imprisonment  were  involved, 
and  yet  the  judgment  was  reversed  because  the  jur\'  list  had  been 
mutilated;  in  other  words,  because  all  classes  of  jurymen  were  not 
represented  on  the  lists  from  which  the  trial  jury  was  drawn.  In 
the  anarchist  case  seven  lives  were  involved,  and  the  jury  was  ob- 
tained bv  worse  maneuvres  than  the  ''worst  maneuvres"  employed 
in  the  trial  of  O'Connell.  Although  nearly  a  thousand  men  were 
summoned,  several  wards  of  Chicago  were  absolutely  excluded  from 
representation  on  the  lists  from  which  the  summonses  were  made. 
Whole  classes  of  qualified  jurors  were  denied  a  representation  on 
the  lists  by  the  arbitrary  decision  cn  a  common  bailiff  of  the  court. 
That  a  judgment  of  death  was  cx:;cuted  on  the  verdict  of  a  jury 
selected  in  that  way,  and  from  a  jury  list  thus  mutilated,  proves 
that  trial  by  jury  in  Illinois  instead  of  being  a  security  to  persons 
who  are  accused  has  become  "  a  ]niock.ery,  a  delusion  and  a  snare." 

The  judgment  in  the  O'Connell  case  was  held  bad  for  the  ad- 
ditional reason  that  the  indictment  contained  eleven  counts,  some 
good  and  some  bad,  charging  the  defendants  with  conspiracy  in 
eleven  different  ways,  and  on  a  verdict  of  guilty  the  court  imposed 
a  sentence  "  for  the  offenses  aforesaid,"  without  specifying  on  what 
counts  the  sentence  rested.  As  two  of  the  counts  were  held  bad 
by  the  English  judges,  it  was  decided  that  there  was  nothing  in  the 
record  to  show  whether  "  the  offenses  aforesaid  "  were  those  charged 
in  the  good  counts  or  in  the  bad  ones.  The  "  lengthy  "  indictment 
of  eleven  counts  not  only  confused  the  jury,  but  entrapped  the 
Irish  judges  into  the  blunder  of  imposing  an  illegal  sentence. 


A  RHVIEW  ()!•■  THF.  AXARCIIIST  CASE. 


31 


The  trial  of  O'C^unnell  ami  his  colleages  was  a  political  prose- 
cution in  which  the  sympathy  of  the  English  was  immensely  on 
the  side  of  the  government  and  against  the  defendants.  The  feel- 
ing in  England  against  the  ])ris()ners  was  bitter  and  malignant  as 
race  prejudice,  national  hatred,  and  political  antagonism  could 
make  it,  yet  the  reversal  of  the  judgment  against  their  sarcastic 
enemv  and  defamer  was  almost  unanimously  approved  by  the  Eng- 
lish people.  They  saitl  that  he  did  not  have  fair  play  in  the  trial 
court,  and  that  the  judgment  against  him  ought  to  be  reversed. 
While  the  bench  and  the  bar  were  disputing  and  wrangling  over  the 
reversal  of  the  judgment,  the  people  of  England,  caring  nothing 
for '•  the  sharj),  quick,  quillets  of  the  law,"  guided  by  moral  intelli- 
gence and  the  instinct  of  justice  alone,  decided  that  the  unfair 
selection  of  the  jury  was  an  insidious  attack  upon  the  liberty  and 
security  of  the  citizen,  and  that  it  was  not  to  be  endured.  They 
also  decided  that  the  law  itself  was  attacked  and  dishonored  when 
eight  men  were  tried  together  on  an  indictment  containing  eleven 
counts,  a  snare  of  eleven  threads.  They  said,  "Better  is  it  that  a 
hundred  conspiracies  against  the  government  go  unpunished  than 
that  a  judicial  conspiracy  against  the  law  itself  succeed."  The 
journey  of  Mr.  O'Connell  to  London,  after  his  conviction,  was  a 
popular  ovation  such  as  few  men  have  ever  had  in  England.  Why  ? 
Because  the  English  desired  to  show  him  that  they  did  not  approve 
the  methods  by  which  he  was  convicted.  They  knew  that  the  in- 
dictment against  him  was  a  law  spider's  web  woven  to  entangle  him, 
and  that  the  selection  of  his  trial  jury  was  unfair.  Speaking  of  the 
indictment  in  the  O'Connell  case,  and  the  reversal  of  the  judgment, 
an  influential  London  newspaper  of  the  time  said  : 

The  indictment  was  a  legal  puzzle  placed  upon  parchment  to  the 
confounding  of  all  ordinary  understandings,  and  of  none  more  so 
than  the  jury  who  had  to  decide  upon  it.  It  charged  all  sorts  of 
things  in  all  sorts  of  ways;  the  consequence  Avas  that  many  of  them 
were  unsound,  bad,  and  untenable  in  law.  The  defects  were 
jiointed  out  by  the  defendant's  counsel  in  the  Dublin  court  of 
(Queen's  Bench.  But  the  Irish  judges  all  declared  the  counts  were 
unexceptionable.  When  the  case  is  removed  to  England  the  Eng- 
lish judges  all  declare  that  some  of  the  counts  are  bad;  but  the 
majority  of  them  think  the  indictment  is  not  sufficiently  vitiated  by 
it  to  render  a  reversal  of  the  judgment  imperative.  But  that 
opinion  not  binding  the  house  of  lords,  it  has  decided  both  that 
the  bad  counts  do  vitiate  the  judgment,  and  that  it  ought  to  be   re- 


32  THE  TRIAL  OF  THE  JUDGMENT. 

versed;  so  it  is  reversed  accordingly.  The  mistakes  and  mishaps 
that  attended  the  jury  list,  and  the  refusal  of  the  challenge  to  the 
array  have  also  had  much  to  do  with  quashing  the  decision  of 
the  Irish  judges.  These  last  points  seem  to  have  weighed  partic- 
ularly with  Lord  Denman;  but  the  grand  vice  and  radical  defect  of 
the  trial  was  the  "  monster"  indictment,  which  may  serve  as  a  warn- 
ing to  all  future  attorneys  general  to  make  their  charges  as  unlike 
it  as  possible. 

THE    STATE    TAKES    ADVANTAGE    OF    ITS    OWN    WRONG. 

In  a  light  and  playful  way,  Mr.  Justice  Mulkey,  confessing 
errors  in  the  record,  talks  irony  to  the  condemned  men,  and  says, 
"  Really,  so  many  of  you  were  tried  together,  the  '  wonderment '  is 
that  the  errors  are  not  more  numerous  than  they  are."  The  exact 
language  of  Justice  Mulkey  is  this  : 

In  view  of  the  number  of  defendants  on  trial,  the  great  length 
of  time  consumed  in  the  trial  the  vast  amount  of  testimony  offered 
and  passed  upon  by  the  court,  and  the  almost  numberless  rulings 
the  court  was  required  to  make,  the  wonderment  to  me  is  the 
errors  were  not  more  numerous  and  of  a  more  serious  character 
than  they  are. 

There  must  have  been  grim  laughter  on  the  Supreme  bench  at 
that  burst  of  sardonic  humor,  for  one  of  the  errors  alleged  in  the 
appeal  was  that  the  defendants  were  refused  the  right  to  be  sepa- 
rately tried.  Mr.  Justice  Mulkey,  confessing  errors,  permitted  them 
to  prevail  in  the  doc^m  of  seven  men,  for  the  paradoxical  reason 
that  errors  were  inevitable  where  so  many  men  were  tried  together. 
Was  it  the  fault  of  the  defendants  that  eight  men  we're  tried  "  in  a 
row?"  Shall  the  prosecution  take  advantage  of  its  own  mistake, 
if  not  its  own  wrong?  Whether  designed  or  not,  the  effect  of  such 
a  number  of  defendants  was  to  throw  confusion  into  the  jury  box, 
and  errors  into  the  rulings  and  instructions  of  the  court  below. 

Looking  at  the  reasons  for  Justice  Mulkey's  "wonderment,"  the 
suspicion  rises  into  certainty  that  all  the  errors  he  refers  to  were 
premeditated;  that  with  malice  aforethought  it  was  deliberately 
contrived  that  wrong  and  not  right  should  be  done;  that  the  jurv 
should  be  confused,  and  the  judge  himself  made  nervous  by  a  mul- 
titude of  puzzles.  Justice  Mulkey,  no  doubt,  has  very  often  ruled 
that  a  man  is  jjresumed  to  intend  the  consequences  of  his  own 
actions.  Why  did  he  not  apply  the  maxim  to  the  state's  attorney? 
As  Justice  Mulkey  concedes  that  the  trial  of  eight  men  together 


A  REVIEW  OF  THE  ANARCHIST  CASE.  .. 

must  necessarily  complicate  the  case  with  errors,  why  shouUl  not 
the  state's  attorney  be  presumed  to  have  intended  the  errors  which 
were  the  necessary  result  of  his  own  actions?  Had  he  wished  to 
avoid  errors,  he  should  have  avoided  the  cause  of  them.  When  a 
])rosecuting  attorney  insists  on  trying  eight  men  together  for  their 
Hves,  on  an  indictment  containing  sixty-nine  counts,  the  presump- 
tion is  that  he  anticipates  errors  and  relies  upon  them  for  success. 

Like  many  other  judges  of  some  learning  and  ability,  Mr. 
Justice  Mulkey  was  lacking  in  judicial  courage,  when,  approving  a 
judgment  of  death,  he  condemned  errors  in  the  trial  of  its  victims, 
and  dared  not  specify  the  errors  he  condemned.  Evidently  they 
were  not  the  errors  confessed  in  the  decision  of  the  whole  court, 
because  Justice  Mulkey  intimates  that  his  original  intention  was  to 
write  a  separate  opinion.  He  is  correct  in  thinking  that  this  is 
what  he  "  should  have  done."  In  order  to  hang  a  few  of  his  fellow 
men,  Justice  Mulkey  calmly  overturned  another  ancient  principle 
of  the  law,  that  where  a  wrong  or  error  is  committed  between  par- 
ties, however  innocently  done,  the  loss  and  injury  resulting  from 
the  mistake  must  be  borne  by  the  side  that  made  it. 

Thus  wrong  begets  wrong,  and  the  Supreme  Court  travels  in  a 
circle  round  and  round.  The  joinder  made  errors,  and  errors  are 
excused  because  of  the  joinder.  In  a  '•  snare  "  like  that  four  men 
were  strangled.  The  joinder  of  defendants  at  the  trial  was  the  act 
of  the  state's  attorney  himself;  yet  he  was  permitted  to  take  advan- 
tage of  it,  and  multiply  his  challenges  from  twenty  to  one  hundred 
and  sixty.  The  Supreme  Court  excuses  this  by  quoting  the  letter 
of  the  statute  : 

The  statute  says  that  the  attorney  prosecuting  on  behalf  of  the 
people  shall  be  admitted  to  a  peremptory  challenge  of  the  same 
number  of  jurors  that  the  accused  is  entitled  to.  We  cannot  see 
how  language  can  be  plainer  than  that.  It  explains  itself,  antl  re- 
quires no  further  remark. 

Certainly  language  cannot  be  plainer  than  that,  but  the  statute 
is  to  be  construed,  not  according  to  its  language  alone,  but  accord- 
ing to  its  logically  moral  meaning,  or,  as  Blackstone  has  it,  "  ac- 
cording to  the  reason  and  spirit  of  the  law."  It  never  was  the 
reason  and  spirit  of  the  law  that  a  prosecuting  attorney  should  be 
allowed  to  multiply  his  own  challenges  at  will  by  joining  at  his  own 
plear,ure  a  large  number  of  defendants  in  one  indictment,  and  then 


34  THE  TRIAL  OF  THE  JUDGMENT. 

insisting  upon  it  that  they  all  be  tried  together.  The  statute  means 
by  "  the  accused  "  one  defendant,  and  it  recognizes  in  the  prose- 
cution only  one  accuser.  The  prosecution  may  multiply  the  num- 
ber (if  defendants  by  joining  them  together  in  an  indictment,  but 
it  cannot  multiply  itself  by  its  own  arbitrary  act  and  will.  Law,  or 
not  law,  the  allowance  of  i6o  peremptory  challenges  to  the  prose- 
cution was  a '' grievance  and  oppression."  It  was  i6o  challenges 
against  each  of  the  defendants,  while  they  were  allowed  only 
twenty  each  against  the  state.  It  is  very  true  that  the  prosecution 
used  only  about  sixty  of  the  peremptory  challenges  allowed  them, 
while  the  defendants  exhausted  all  of  theirs,  but  this  itself  is  evi- 
dence that  the  jurymen  selected  by  the  bailiff  were  favorable  to  the 
state  and  hostile  to  the  defendants.  In  deciding  by  the  letter  of  the 
law,  the  Illinois  judges  forgot  their  early  reading.  They  inter- 
preted the  statute,  not  according  to  the  rules  they  learned  in 
Blackstone  and  the  text  books,  but  according  to  the  literal  method 
adopted  by  the  young  lady  chief  justice  in  the  celebrated  case  of 
Shylock  against  Antonio. 

In  the  more  enlightened  states  of  the  American  Union,  the 
prosecution  in  criminal  trials  is  allowed  only  half  as  many  chal- 
lenges as  are  given  to  the  defendant.  The  reason  of  this  provision 
is  that  the  state  has  in  its  own  hands  all  the  machinery  of  the 
courts.  It  prescribes  the  forms  of  trial,  the  salary  of  the  judges, 
the  rules  of  evidence,  the  qualifications  of  jurors,  and  the  mode  of 
their  selection.  This  advantage  is  supposed  to  be  equalized  to 
the  defendant  by  allowing  him  twice  as  many  peremptory  chal- 
lenges as  the  state  is  entitled  to.  This  is  a  just  and  humane  rule, 
a  protection  to  the  imperilled  citizen,  a  wholesome  check  upon 
despotic  power,  and  a  useful  balance  wheel  in  the  mechanism  of 
trial  by  jury.  It  is  a  promise  that  the  state  will  not  take  advantage 
of  the  unfortunate,  and  it  is  a  guarantee  that  the  prisoner  shall 
have  fair  play.  No  such  generous  rule  prevails  in  Illinois  as  yet, 
and  it  is  mentioned  here  only  to  throw  the  light  of  contrast  on  the 
methods  employed  to  secure  a  partial  and  prejudiced  jury  for  the 
trial  of  the  anarchists. 

In  an  editorial  reply  to  the  pamphlet,  "  Was  it  a  Fair  Trial  ?  "  one 
of  the  leading  papers  of  Chicago  said  that  the  anarchists  got  a 
fairer  trial  in  America  than  they  would  have  been  allowed  in  Eng- 
land; that  in  that  country  they  would  have  been  tried  speedily,  sen- 


A    KFAIKW  OK    llIK  ANARCHIST  CASE. 


35 


tenced  quickl\ ,  and  hanged  without  dchi\-  and  without  appeal  The 
(luestion  was,  not  what  sort  of  trial  tiie  men  wouhl  liave  had  in  Lon- 
don, but  was  a  fair  and  impartial  trial  allowed  them  in  Chica,L(o. 
The  comparison,  howe\er,  ma\'  not  he  altogether  unprcjlUable.  It 
is  true  that  the  trial  would  have  been  shorter  in  London  than  in 
Chicago,  for  the  prosecuting  attorney  would  not  have  been  permit- 
ted to  try  the  defendants  for  the  acts  and  words  of  years.  Secondly, 
the  defendants  would  have  been  granted  separate  trials  as  of  riglu. 
This  would  have  saved  the  lives  of  them  all,  for  it  will  hardly  be 
claimed  that  any  one  of  them  could  have  been  convicted  and 
hanged  on  the  evidence  against  him  alone,  separated  from  the  evi- 
dence against  the  rest.  Thirdly,  they  would  have  had  a  fair  and 
impartial  jury,  "drawn  at  random,"  from  a  list  of  qualified  persons 
selected  from  "  the  body  of  the  county."  And  fourthly,  every  for- 
eigner among  them  would  have  been  entitled  to  a  jury,  only  one- 
half  of  which  should  consist  of  Englishmen  and  L-ishmen,  while 
the  other  half  should  be  composed  of  foreigners  like  himself.  But 
all  this  is  little  to  the  i)urpose  here.  The  English  criminal  practice 
is  not  under  criticism  in  this  discussion.  The  alleged  wrongs  done 
in  the  trial  of  the  anarchists  are  the  theme  of  this  debate. 

THE    SPEECHES    TO    THE    JURY. 

It  is  in  the  record,  and  not  to  be  denied  that  the  state's  attorney, 
in  his  eager  zeal  for  death,  broke  through  the  lines  of  professional 
etiquette,  which  the  humane  spirit  of  the  law  has  thrown  around  his 
office.  It  is  laid  down  in  the  books  that  the  prosecuting  attorney, 
like  the  judge,  shall  stand  absolutely  impartial  between  the  prisoner 
and  the  state.  He  must  not  revile  the  prisoner,  nor  insult  him.  He 
must  not  make  fact  statements  in  his  argument,  nor  offer  to  the  jury 
his  own  opinion  on  the  question  of  guilt  or  innocence,  because,  if 
he  is  a  popular  man  in  whom  the  jury  have  great  confidence,  his 
mere  opinion  may  have  greater  weight  than  the  sworn  testimony  of 
other  men.  All  these  rules  were  violated  in  this  case  against  the 
protest  of  the  defendant's  counsel,  and  the  Supreme  Court  decides 
that  the  "improprieties"  were  not  serious  enough  to  affect  the  judg- 
ment. The  Supreme  Court  of  Massachusetts  once  decided  that  '•  a 
man  had  a  right  to  quibble  for  his  life."  This  is  true,  but  it  is  a 
ghastly  sight  to  see  a  lawyer  quibble  for  the  death  of  his  fellow- 
men. 


36  THE  TRIAL  OF   THE  jUDCiMEXT. 


The  speeches  to  the  jury  were  appeals  for  vengeance  on  the 
prisoners.  They  were  anarchy  in  legal  robes,  vindictive  and  crim- 
son as  the  speeches  for  which  the  defendants  themselves  were  tried. 
The  moral  discipline  of  the  bar  was  broken,  and  the  ethics  of  the 
profession  lowered  when  the  state's  attorney  condescended  to  pour 
angry  invective  and  personal  reproaches  upon  men  powerless  to 
reply.  The  dignity  of  the  legal  profession  shriveled  up  when  the 
counsel  for  the  people  offered  fact-statements  to  the  jury  free  from 
the  guards  and  sanctions  of  an  oath,  and  free  from  the  test  of  cross- 
examination.  Worse  than  all,  the  very  genius  of  advocacy  looked 
mendicant  and  ragged  when  the  state's  attorney  begged  for  a  ver- 
dict on  the  niggling  plea  that  the  state  had  no  appeal  from  acquittal 
while  from  a  judgment  of  guilty  the  defendants  could  appeal  for  a 
reversal  to  the  Supreme  Court,  or  to  the  governor  for  a  mitigation 
of  the  sentence.  This  was  almost  a  promise  that  a  death  sentence 
having  served  as  an  example  and  a  warning;  the  death  penalty 
would  not  be  inflicted.  "  Gentlemen  of  the  jury,  their  blood  be 
upon  us  and  upon  our  children,  not  upon  you."  It  was  illegal  for 
the  state's  attorney  to  absolve  the  jury  from  any  portion  of  respon- 
sibility for  the  sentence  of  death. 

"The  evil  that  men  do  lives  after  them,"  and  whenever  a  crim 
inal  trial  becomes  historic,  the  wrongs  done  in  its  prosecution  by 
either  bench  or  bar,  brand  themselves  in  marks  of  shame  upon  the 
perpetrators.  No  subsequent  greatness,  not  even  the  glory  of  judi- 
cial integrity,  nor  the  splendor  of  intellectual  achievement,  can 
erase  the  livid  lines  that  tell  of  deep  disgrace.  They  cling  like  a 
bar  sinister  to  character,  and  remain  visible  so  long  as  the  names  of 
the  wrong-doers  remain  visible  in  history.  Lord  Coke,  the  greatest 
lawyer,  and  Lord  Bacon,  the  greatest  man,  that  England  ever  pro 
duced,  go  down  to  posterity  together,  branded  as  vindictive,  un- 
fair, and  cruel  prosecuting  attorneys.  Lord  Campbell,  in  his  life  of 
Coke,  halts  in  his  praise  of  him  to  say  : 

But  he  incurred  never-dying  disgrace  by  the  manner  in  which  he 
insulted  his  victims  when  they  were  placed  at  the  bar  of  a  criminal 
court. 

Coke  was  attorney  general,  and  prosecuted  the  earl  of  Essex  for 
high  treason  in  the  reign  of  Queen  Elizabeth.  Bacon  was  of  coun- 
sel with   him,  and  behaved,  if  possible,  worse  than    Coke.     After 


A  REVIEW  nv  THE  AXARCIITST  CASE. 


Coke  had   made  a  speech    to   the   court,  full   of  iiisull    and   abuse 
toward  the  prisoner,  Essex  replied  : 

He  playeth  the  orator  and  abuses  \-our  lordship's  ears  with 
slanders,  but  they  are  but  fashions  of  orators  in  corrupt  states. 

Lord  Campbell,  further  speaking  about  the  trial  of  Essex,  says  : 
"This  was  a  humiliating  day  for  our  '  order,'  as  Bacon  covered  him- 
self with  still  blacker  infamy,  by  volunteering  to  be  counsel  against 
his  friend  and  benefactor,  and  by  resorting  to  every  mean  art  for 
the  purpose  of  bringing  him  to  the  scaffold."  By  our  "order'' 
Lord  Campbell  means  the  legal  profession,  to  which  he  himself  be- 
longed, and  the  time  is  not  far  away  when  every  lawyer  in  Illinois, 
speaking  of  the  revengeful  and  unfair  prosecution  of  the  anarchists, 
and  the  angry  speeches  made  against  them  at  their  trial,  and  the 
"  mean  arts  "  resorted  to  for  the  purpose  of  bringing  them  to  the 
scaffold,  will  say  :   "  T/ia/  was  a  /imni/iatiiii^  day  for  our  order." 

Coke  was  prosecuting  attorney  at  the  trial  of  Sir  Walter  Raleigh, 
and  "lam  sorry  to  say,"  remarks  Lord  Campbell,  that  "  by  his 
brutal  conduct  to  the  accused,  he  brought  permanent  disgrace  upon 
himself,  and  upon  the  English  bar." 

There  is  a  striking  likeness  between  the  manner  and  words  of 
Coke  at  the  trial  of  Raleigh,  and  the  manner  and  words  of  the  dis- 
trict attorney  at  the  trial  of  the  anarchists.  In  both  cases  the  re- 
spective prosecutors  poured  calumny  upon  the  defendants.  "  I  will 
prove  yau  the  notoriest  traitor,"  said  Coke;  "  These  men  are  trait- 
ors," said  Mr.  Grinnell.  "Thou  art  a  monster,"  said  Coke;  "Infa- 
mous scoundrels,"  said  Mr.  Grinnell.  "  I  protest  I  never  knew  a 
clearer  treason,"  said  Coke;  "These  men  who  have  committed 
treason,"  said  Mr.  (irinnell.  "Thou  traitor,"  said  Coke;  "These 
traitors,"  said  Mr.  (rrinnell.  "  I  want  words  to  express  thy  viper- 
ous treasons,"  said  Coke;  "These  men  are  on  trial  for  treason  and 
murder,"  said  Mr.  Crinnell.  He  then  went  on  to  assure  the  jury 
that  the  penalty  of  treason  is  death,  and  that  they  could  not  modi- 
ify  it  to  a  term  in  the  penitentiary.  "  No.  it  is  death."  said  Mr. 
Grinnell. 

It  is  difficult  to  compare  two  very  bad  things  together,  but  in 
comparing  those  two  prosecuting  attorneys  the  superiority  is  largely 
on  the  side  of  Coke.  Sir  Walter  Raleigh  was  actually  on  trial  for 
treason,  and  when  Coke  reviled  him   as   a   traitor,  he  was  speaking 


^8  THE  TRTAl,  ( )K  'l-HK  JUDHMEXT. 


(iirectly  to  the  charge  in  the  indictment.  When  Mr.  Grinnell  told  the 
jury  in  the  anarchist  case  that  the  defendants  were  on  trial  for  treason, 
he  said  what  was  not  true.  There  was  no  such  charge  against  them 
in  the  indictment.  The  jury,  however,  acted  on  the  statement  of 
Mr.  Grinnell,  believing  that  the  state's  attorney  would  not  mislead 
them  as  to  the  issues  they  were  sworn  to  try.  It  is  very  likely 
that  some  of  the  jurymen  still  believe  that  the  anarchists  were 
hanged  for  treason.  This  parallel  may  be  continued  farther.  The 
fate  of  Raleigh  and  the  anarchists  was  the  same.  Commenting  on 
the  case,  Lord  Campbell  says  : 

Of  course,  there  was  a  verdict  of  gi/ilt\\  and  the  atrocity  was 
perpetrated  of  ordering  him  to  be  executed  on  this  illegal  judg- 
ment. 

In  training  public  opinion  to  the  hanging  point,  the  delusion  has 
been  spread  among  the  people  of  Illinois  that  a  judgment  obtained 
on  the  verdict  of  a  jury  and  affirmed  by  the  courts  becomes 
ipso  facia  di\\(\  dt'  Jure  legal.  But  law  is  only  a  branch  of  moral 
science,  and  the  courts  of  righteousness  have  jurisdiction  over  all 
its  judgments  to  reverse  them  or  sustain  them.  Nay,  tested  by  a 
lower  standard,  the  merely  human  rules  established  for  the  protec- 
tion of  the  citizen  on  trial  for  his  life,  the  judgment  against 
Raleigh  was  not  only  unjust,  but  iii(\i^-ai.  This  is  the  decision  of 
Lord  Campbell,  himself  a  lawyer,  and  lord  chief  justice  of  Eng- 
land. By  the  unanimous  consent  of  the  bar  of  England,  the  judg- 
ment against  Raleigh  is  reversed.  Already  hundreds  of  Illinois 
lawyers  admit  that  the  judgment  against  the  anarchists  was  illegal. 
Before  long  it  will  be  reversed  as  illegal  by  the  unanimous  opinion 
of  the  bar.  Before  the  tribunal  of  enlightened  conscience  the  trial 
of  the  anarchists  must  itself  be  tried,  and  in  that  higher  court  it 
will  surely  be  condemned. 

There  is  a  lofty  and  humane  contrast  to  all  that  in  a  great  state 
trial  mentioned  in  the  history  of  England;  the  trial  of  Ashton, 
Elliott  and  Lord  Viscount  Preston,  for  high  treason,  in  the  reign  of 
William  III.  It  is  eloquently  described  in  Macauley's  fourth  vol- 
ume, and  it  will  bear  repeating  here. 

Early  in  Linuary,  Preston,  Ashton  and  l^Uiott  had  been  ar- 
raigned at  the  Old  Bailey.  They  claimed  the  right  of  severing  in  their 
challenges.  It  was,  therefore,  necessary  to  try  them  separately. 
A  considerable  number  of  judges  appeared  on  the  bench,  and  Holt 


A  RKVIEW  <)!•     INK   AXAKC  HIST  CASE. 


presided.  The  solicitor  general,  Somers,  conducted  the  prosecutions 
with  a  moderation  and  humanity  of  which  his  jjredecessors  had  left 
him  no  example.  "  I  did  never  think,"  he  said,  "  that  it  was  the  part 
of  any  who  were  of  counsel  for  the  K'ln'j;  in  cases  of  this  nature  to 
aggravate  the  crime  of  the  jirisoners,  or  to  put  false  colors  on  the 
evidence."  Holt's  conduct  was  faultless.  PoUexfen,  an  older  man 
than  Holt  or  Somers,  retained  a  little — and  a  little  was  too  much — 
of  the  tone  of  that  bad  school  in  which  he  had  been  bred.  The 
prisoners  themselves  seem  to  ha\e  been  surprised  by  the  fairness 
and  gentleness  with  which  they  were  treated.  "  I  would  not  mislead 
the  jur\',  I'll  assure  you,"  said  Holt  to  Preston;  nor  do  you  any  man- 
ner of  injury  in  the  world."  "  No,  my  lord,"  said  Preston,  "I  see 
that  your  lordship  would  not."  "Whatever  my  fate  may  be,"  said 
Ashton,  "  I  cannot  but  own  that  I  have  had  a  fair  trial  for  my  life." 

The  condemned  anarchists  could  not  say  that  they  had  a  fair 
trial  for  their  lives.  Their  wives  and  children  cannot  say  so;  no 
friends  of  theirs  can  say  so;  and  no  enemy  who  has  calmly  studied 
the  case.  The  plea  for  their  death  was  that  they  were  enemies  of 
society,  who  might  beneficially  be  destroyed.  "  Anarchy  is  on  trial," 
said  the  state's  attorney  to  the  jury,  and  the  verdict  was  responsive 
to  the  appeal.  "  Vengeance  is  mine,"  said  Populus,  "  and  I  will  repay." 
What  matters  it  whether  the  seven  are  specifically  guilty  of  the  Hay- 
market  affair  or  not  ?  They  are  guilty  of  anarchy,  and  for  anarchy 
they  are  condemned.  '•  For  many  months,"  remarks  Populus,  "  they 
have  challenged  me  to  play  a  game  of  murder,  and  I  demand  all 
the  stakes  I  have  won."  There  is  force  in  this  claim,  and  good 
barbarian  logic.  Had  Populus  exacted  prompt  payment  through  a 
vigilance  committee,  criticism  would  have  been  light  and  transient, 
but,  having  a  choice  of  tribunals,  Populus  chose  the  court  house, 
and  was  bound  by  the  rules  of  the  forum  he  selected.  When  he 
took  his  enemies  before  a  jury  he  promised  them  a  fair  trial  ac- 
cording to  the  laws  of  the  land,  and  by  that  promise  Populus  was 
bound. 

THE  JURY  REQUESTED  TO  RECONCILE  THE  INSTRUCTIONS  OF  THE  COURT. 

Not  only  did  the  jury  have  despotic  power  over  the  evidence,  but 
they  were  made  critics  and  reviewers  of  the  trial  court  itself.  It  was 
assumed  by  the  Supreme  Court  that  the  jury  not  only  had  knowledge 
and  wisdom  enough  to  separate  good  law  from  batl  law,  correct  in- 
structions from  erroneous  ones,  but,  also,  that  they  actually  made 
the  separation  and  acted  on  the  good  law  and  the    correct  instruc- 


THE  TRIAL  OF  THE  lUDC.MENT. 


tions  only.  On  this,  as  on  other  points,  the  benefit  of  all  doubt  is 
given  to  the  state.  The  proof  of  this  is  found  in  the  decision  it- 
self. Here  is  the  language  of  the  Supreme  Court,  which  assumes  that 
the  jury  had  legal  knowledge  greater  than  the  trial  judge,  and  in  dis- 
criminating between  the  right  and  the  wrong  did  whatever  was 
proper  to  be  done. 

As  to  the  first  objection,  if  we  construed  the  instruction  to  mean 
what  counsel  claim  it  to  mean,  we  would  be  forced  to  agree  with 
them  that  it  was  erroneous.  It  is  the  duty  of  the  jury  to  consider 
all  the  instructions  together,  and  when  this  court  can  see  that  an  in- 
struction in  the  series,  although  not  stating  the  law  correctly,  is 
qualified  by  others,  so  that  the  jury  were  not  likely  to  be  misled, 
the  error  will  be  obviated. 

This  claim  cannot  fairly  be  allowed  to  one  side  and  denied  to 
the  other.  The  defendants  have  as  good  a  right  to  say  that  the 
bad  instructions  qualified  the  good  ones  as  the  prosecution  has  to 
say  that  the  good  ones  qualified  the  bad.  Who  shall  decide  which 
one  of  them  influenced  the  jury?  How  many  jurors  are  compe- 
tent to  analyze  a  legal  mixture  composed  of  good  and  bad  instruc- 
tions given  by  the  court.  Besides,  in  this  case  there  is  an  allegation 
strongly  supported  that  the  jury  was  not  impartial,  that  it  was  prej- 
udiced against  the  defendants,  and  therefore  more  likely  to  be  con- 
trolled by  instructions  adverse  to  them  than  by  instructions  in  their 
favor. 

In  that  paragraph  is  an  assumption  that  the  jury  were  compe- 
tent to  consider  all  the  instructions  together,  and  to  strike  out  those 
"  not  stating  the  law  correctly;  "  and  it  is  also  conclusively  assumed 
that  they  did  discriminate  between  the  good  instructions  and  the 
bail.  Unfortunately,  the  sudden  agreement  on  a  verdict  proves  that 
the  jury  did  not  consider  all  the  instructions  together,  but  only 
those  fringed  with  the  sombre  embroidery  of  death. 

In  another  place  the  Supreme  Court  says  : 

Therefore,  the  instruction  fairly  interp7-etcd  means  that  the 
persons  advised  to  commit  murder  were  the  working  men  belonging 
to  and  acting  with  the  International  Croup. 

There  again  it  is  concluded  beyond  a  reasonable  doubt  that  the 
instruction  was  "  fairly  interpreted  "  by  the  jury,  while  the  verdict 
and  the  swiftness  of  it  are  witnesses  to  the  contrary. 

Another    im])ortant  instruction   of  doubtful     character   the    Su- 


A  REVIEW  OF  THE  ANARCHIST  CASE. 


41 


preme  Court  holds  was  made  harmless,  if  not  sound,  by  comparing 
it  with  healthier  and  more  legitimate  instructions.  These  "  quali- 
fied "  its  meaning  and  disarmed  it.  In  the  language  of  the  Supreme 
Court: 

The  instruction  is  sufficiently  limited  and  qualified  when  read 
in  connection  with  all  the  other  instructions  to  which  it  especially 
calls  attention.  It  does  not  supercede  and  stand  as  a  substitute  for 
the  other  instructions  given  for  both  sides.  It  does  not  so  purport 
upon  its  face.  On  the  contrary,  the  jury  are  directed  to  carefully 
scrutinize  such  other  instructions,  and  are  told  that  their  apparent 
inconsistencies  will  disappear  under  such  scrutiny. 

Is  that  good  law  in  capital  cases?  Is  it  not  the  duty  of  the 
court  in  trials  involving  life  or  death  to  purge  the  instructions  of 
all  '•  apparent  inconsistencies"  before  giving  them  to  the  jury?  If  it 
is  claimed  that  in  a  trial  of  eight  men  together  on  an  indictment  of 
sixty-nine  counts,  a  trial  lasting  sixty  days,  the  trial  court  could  not 
possibly  scrutinize  its  numerous  instructions  so  that  they  would  not 
contain  "  apparent  inconsistencies,"  how  could  twelve  unlearned 
men  "  scrutinize  "  the  same  instructions  and  make  the  apparent  in- 
consistences "disappear?"  There  are  not  twelve  lawyers  in 
Chicago  learned  and  skillful  enough  to  perform  the  feat  which  the 
Supreme  Court  assumes  the  jury  actually  performed.  The  Supreme 
Court  itself  is  not  able  to  do  it.  The  "inconsistencies  "  are  there; 
and  no  extent  of  scrutiny  will  make  them  "disappear."  Besides, 
the  evidence  is  clear  that  the  jury  did  not  attempt  to  "  scrutinize  " 
the  instructions  except  in  their  most  fatal  meaning  to  the  men  on 
trial.     The  Supreme  Court  continues  thus  : 

In  the  last  sentence  the  jury  are  requested  to  disregard  any  un- 
guarded expressions  that  may  have  crept  into  the  instructions  which 
may  seem  to  assume  the  existence  of  any  facts,  and  look  only  to 
the  evidence,  etc. 

Why  was  it  that  the  many  creeping  illegalities  that  got  into  the 
case  were  venomous  towards  the  defendants  ?  How  came  it  that 
"unguarded  expressions"  crept  into  the  instructions;  expressions 
that  assume  the  existence  of  facts  ?  They  could  not  have  crept  in 
except  by  fogery.  They  were  put  in  by  the  judge.  Having  put 
them  in  he  politely  "  requested  "  the  jury  to  take  them  out.  Where 
is  the  evidence  that  the  jury  did  as  requested?  There  is  none, 
while  proof  is  abundant  that  they  did  not.  It  was  unreasonable  to 
expect  that  the  jury  would  strike  out  unguarded  expressions  which 


4^ 


Till-:    TRIAL  OF  THE   lUDG.MEX  T, 


assumed  the  existence  of  facts,  after  the  judge  himself  had  delib- 
eratel}'  put  them  in,  and  why  is  it  that  in  all  this  voluminous  case 
no  unguarded  expressions  '■^  crept  in'"  which  assumed  the  existence 
of  facts  favorable  to  the  accused  ?  Why  is  it  that  the  benefit  of 
ever)-  doubt  is  given  to  the  state,  while  the  defendants  must  bear 
the  evil  consequences  of  every  mistake  made  by  the  state's  at- 
torney  and    the  judge  ? 

THE  INVERTED  LOGIC  OF  THE  COURT. 

Never  before,  except  in  burlesque,  was  the  meaning  of  words  re- 
versed as  in  the  anarchist  trial.  Logic  stood  on  its  head,  and  rea- 
soned with  its  heels.  Facts  absent  from  the  theory  of  the  prosecu- 
tion were  solemnly  claimed  as  evidence  to  establish  it.  It  was 
averred  that  if  certain  events  had  happened  which  did  not  happen, 
they  Avould  have  shown  that  the  conspiracy  and  the  tragedy 
were  cause  and  consequence,  therefore  the  connection  is  proved. 
This  is  not  meant  for  ridicule,  and  its  grotesque  appearance 
is  merely  the  shadow  of  the  Supreme  Court  tracing  the  crime 
back  to  the  conspiracy.  It  is  the  language  of  the  opinion  itself 
that  throws  sarcasm  upon  the  decision.  Here  is  the  claim  of  the 
Supreme  Court  : 

The  mode  of  attack  as  made  corresponded  with  the  mode  of  at- 
tack as  planned. 

And  here  is  the  inconsequent  reasoning  by  which  that  claim  is 
supijorted  : 

The  Desplaines  Street  Station  was  in  sight  of  the  speaker's  wagon, 
and  only  a  short  distance  south  of  it.  If  a  bomb  had  been  thrown 
into  the  station  itself,  and  if  the  policemen  had  been  shot  down 
while  coming  out,  a  part  of  the  conspiracy  would  have  heoi  liter- 
ally executed  just  as  it  was  agreed  upon. 

By  reasoning  upside  down  in  that  fashion  the  tragedy  in  the  Hay- 
market  is  connected  with  a  conspiracy  that  was  not  carried  out,  ami 
seven  men  vaguely  and  remotely  identified  with  said  "  conspiracy  " 
are  connected  with  a  bomb  thrown  by  '•  a  person  unknown,"  and 
who  is  not  shown  to  ha\'e  had  any  association  whatever  with  the 
se\en  men,  ncjr  any  connection  at  all  with  the  so-called  consijiracy. 
The  Supreme  Court  itself  virtually  rejects  the  theory  that  Schnau- 
belt  threw  the  bomb,  for  the  more  comprehensive  drag-net  theory 
that  it  was  thrown  by  '•  some  person  to  the  jurors  imknown." 


A  REVIEW  OV    IIIE  ANARCHIST  CASK 


The  coiispirac)-  wliich  the  prosecution  attempted  to  show  (ju  the 
trial,  and  whicli  it  is  pretended  they  did  show,  was  not  carried  into 
execution  in  any  of  its  essential  details.  As  illustrated  and  ex- 
plained by  the  Supreme  Court  itself,  it  was  a  conspiracy  that  aimed 
at  a  social  and  political  revolution.  Hundreds,  aye,  thousands  of 
men  were  engaged  in  it.  It  was  to  begin  by  the  throwing  of  bombs 
into  the  North  Avenue  Station  and  into  other  stations  in  the  city. 
Well  drilled  men,  armed  with  rifles,  were  to  be  stationed  outside  to 
shoot  the  police  as  they  came  out;  then  the  conspirators  were  to 
march  inwards  toward  the  heart  of  the  city,  destroying  whatever 
should  oppose  them;  the  telegrajjh  wires  and  the  hose  of  the  fire- 
men would  be  cut,  and  the  reign  of  anarchy  begin.  Nothing  of  the 
kind  occurred;  nothing  of  it  was  attempted;  nothing  of  it  prepared 
for,  except  the  making  of  bombs  by  Lingg. 

According  to  the  conspiracy  relied  on  by  the  prosecution,  many 
men  should  have  been  engaged  in  it,  and  many  bombs  thrown.  In 
fact,  only  one  bomb  was  thrown,  and  that  by  an  unknown  man. 
This  disproves  that  conspiracy,  and  tends  to  show  that  the  bomb- 
throwing  was  the  revengeful  act  of  one  man  alone.  There  were  no 
armed  men  with  rifles  anywhere,  and  the  claim  that  pistols  were 
fired  by  the  mob  is  disputed  by  strong  evidence.  Every  essential 
detail  of  the  alleged  conspiracy  was  absent  from  the  tragedv,  and 
for  want  of  the  necessary  facts  a  scaffold  was  built  of  •'  if  "  and 
'•  would  have  been." 

"  // a.  bomb  had  been  thrown  into  the  station,  and  //the  police- 
men had  been  shot  down  while  coming  out,  a  part  of  the  conspiracy 
would  have  been  literally  executed. 

Antl  therefore  men  must  die  for  a  conspiracy  which  was  not  exe- 
cuted, but  which  would  have  been  executed  if  something  which 
never  happened  had  been  done;  a  conspiracy,  of  which  if  it  even 
existed,  some  of  the  condemned  men  could  not  possibly  have  had 
any  knowledge.  And  thus  the  evidence  in  the  case  overwhelmingly 
proves  that  the  mode  of  attack  as  made  corresponded  not  with  the 
mode  of  attack  as  planned. 

Had  the  indictment  been  simply  for  a  conspiracy  punishable  by 
fine  and  imprisonment,  the  prosecution  would  have  been  held  down 
to  clear  and  definite  allegations  with  which  the  evidence  would  have 
been  compelled  to  correspond.  As  it  was,  the  hea\-ier  crime  of 
murder  was  permitted  to  rest  upon  an  undefined  and  shadowy  charge 


^4  THE  TRIAL  OF  THE  JUDGMENT. 


composed  of  opposite  and  contradictory  ingredients.  The  so-called 
conspiracy,  instead  of  being  a  siibstantial  accusation  based  on  fact- 
averments  on  which  issue  might  be  taken,  was  nothing  but  a  claim 
growing  out  of  a  mass  of  incoherent  running  testimony,  and  shift- 
ing day  by  day.  The  conspiracy  was  a  remote  cloud  changing  its 
form  continuously  in  obedience  to  the  changing  winds  of  evidence. 
One  day  it  was  like  a  weasel,  the  next  it  was  backed  like  a  camel, 
and  at  last  it  was  "  very  like  a  whale." 

Allowing  the  so-called  conspiracy  the  exaggerated  form  given  to 
it  by  the  state's  attorney,  the  parts  of  it  were  so  remote  from  each 
other,  and  from  the  defendants  respectively,  that  no  criminal  rela- 
tionship could  ever  be  established  between  them.  The  details  of  it 
could  never  have  been  set  forth  by  specific  averments  in  an  indict- 
ment. It  was  a  huge  pretense,  composed  of  incoherent  stories  and 
contradictory  evidence.  It  was  a  constructive  conspiracy  which 
could  not  have  stood  alone  in  any  civilized  court,  and  yet  it  was 
held  good  enough  to  sustain  a  charge  of  murder  and  the  conviction 
of  eight  men.  The  suspicion  already  weighs  like  a  nightmare  on 
the  people  of  Illinois  that  men  were  hanged  in  Chicago  for 
metaphorical  treason  under  an  indictment  for  inferential  mur- 
der. It  must  ever  be  a  reproach  to  the  memory  of  Governor 
Oglesby  that  in  his  administration  the  illegal  doctrine  of  construct- 
ive murder  and  collateral  guilt  was  affirmed  by  death  warrants 
carrying  on  their  faces  the  sanction  of  the  great  seal  of  Illinois. 

The  dangerous  theory  of  implied  complicity  was  extended  over 
the  miscellaneous  words  and  deeds  said  and  done  by  eight  men 
during  sixteen  months  of  their  lives.  Yea,  it  was  stretched  to  New 
York  city  so  as  to  include  the  lurid  threatenings  of  a  book  which 
some  of  the  defendants  had  never  read;  a  book  written  by  a 
man  who  was  not  on  trial  at  all.  A  private  conversation  had  in 
Michigan  some  time  in  February,  1885,  between  Spies  and  a  friend, 
was  given  in  evidence  against  Lingg,  who  was  then  in  Germany, 
and  against  six  other  men  who  never  heard  a  word  of  it,  nor  knew 
anything  about  it  until  it  was  given  as  testimony  at  the  trial.  This  con- 
versation itself,  even  if  correctly  remembered,  was  nothing  more 
than  a  general  expression  of  revolutionary  speculations.  To  intro- 
duce it  against  Spies  himself  was  unjust;  to  introduce  it  against  the 
others  as  evidence  of  a  conspiracy  to  murder,  was  an  act  of  op- 
pression.    The  Supreme  Court  pretended  that  although  it  was  im- 


A   REVIEW  OK  THE  ANARCHIST  CASE. 


43 


proper  to  introduce  the  conversation  as  evidence  against  any  of  the 
defendants  except  Spies,  it  did  not  injure  them.  How  did  tlie  ccnirt 
know  that?  All  the  testimony  was  thrown  into  a  sort  of  hotch-jjot, 
and  the  jury  used  the  whole  of  it  against  every  man  on  trial.  The 
decision  of  the  Supreme  Court  contains  many  expression  like  these  : 
"  The  defendant,  Spies,  in  a  speech  made  in  October,  1885,  said."  "  In 
speeches  made  by  him,  the  defendant  Parsons  said  in  February, 
1885."  "And  in  August,  1885,  he  said."  "The  defendant  Fielden, 
in  speeches  made  by  him  in  March,  1885,  said."  "  In  October, 
1885,  he  said."  "  He  said  in  December,  1885."  '•  He  said  in  Jan- 
uary, 1886,"  and  so  on.  It  was  not  shown  that  the  other  defendants 
heard  those  speeches  or  knew  anything  about  them;  nor  was  it 
shown  that  the  speeches  had  any  reference  to  the  future  tragedy  in 
the  Haymarket.  They  were  violent  political  harangues  publicly 
made,  and  of  a  denunciatory  character.  This  is  conceded  by  the 
Supreme  Court  in  the  following  statement  : 

All  the  evidence  shows  that  the  day  fixed  for  the  inauguration  of 
of  the  "social  revolution"  was  the  ist  of  May,  1886. 

This  doctrine  of  cumulative  responsibility,  joint  and  several,  is 
worthy  of  a  reign  of  terror.  Under  it,  not  only  freedom  of  public 
speech  will  be  destroyed,  but  freedom  of  private  speech  also.  So- 
cial confidence  will  disappear,  and  no  man  will  dare  to  utter  his  po- 
litical opinions  in  conversation  with  his  neighbor.  Lord  Holt  re- 
buked it  on  the  trial  of  Harrison  for  murder.  The  counsel  for  the 
prosecution  calling  a  witness  to  prove  some  felonious  design  of  the 
prisoner  three  years  before,  the  judge  indignantly  exclaimed  : 

Hold,  hold!  What  are  you  doing  now?  Are  you  going  to  arraign 
his  whole  life?  How  can  he  defend  himself  from  charges  of  which 
he  has  no  notice  ?  And  how  many  issues  are  to  be  raised  to  perplex 
me  and  the  jury?  Away,  away!  That  ought  not  to  be;  that  is 
nothing  to  this  matter. 

At  the  trial  of  the  anarchists  a  multitude  of  charges  was  pro- 
duced against  them  of  which  they  had  no  notice,  and  a  profusion 
of  issues  was  raised  to  perplex  the  jury  and  the  judge. 

THE     SHARP    CASE. 

The  first  judicial  satire  on  the  anarchist  case  comes  from  the 
state  of  New  York.  The  decision  of  the  New  York  Court  of  Ap- 
peals in  the  Sharp  case,  throws  ignominy  upon  the  Supreme  Court 
of  Illinois.     A  few  bits  of  improper  testimony  were  admitted  on  the 


46  THE  TRIAL  OF  THE  JUDG.MEXT. 

trial  of  Sharp,  and  because  of  them  the  Court  of  Appeals  reversed 
the  judgment  against  him.  Similar  errors,  but  greater,  and  fifty 
times  more  numerous,  were  sustained  by  the  Supreme  Court  of  Illi- 
nois; and  giving  those  errors  judicial  consecration,  that  warped  tri- 
bunal condemned  seven  men  to  die.  Men  were  hanged  in  Chicago 
despite  of  illegalities  greater  than  those  which  in  the  state  of  New 
York  vitiated  a  mere  sentence  of  imprisonment.  It  was  claimed 
by  the  prosecution  in  the  Sharp  case,  as  in  the  anarchist  case,  that 
granting  the  illegality  of  the  testimony  complained  of,  there  was 
evidence  enough  outside  of  it  to  justify  the  verdict.  The  Court  of 
Appeals  disallowed  this  claim  for  the  reason  that  even  if  well 
founded  it  would  not  legalize  the  verdict,  because  perhaps  the  il- 
legal testimony  was  the  convincing  evidence  that  prevailed  upon 
the  jury. 

The  mischievous  heresy  of  cumulative  responsibility  in  several 
defendants  for  the  separate  actions  of  each  other,  and  the  Illinois 
absurdity  of  tacking  one  man's  crimes  to  another  man's  defense, 
could  not  obtain  any  recognition  from  so  enlightened  a  tribunal  as 
the  New  York  Court  of  Appeals.  The  Illinois  pretense  that  offenses 
multiply  themselves  by  the  rules  of  geometrical  progression  accord- 
ing to  the  number  of  persons  implicated,  was  treated  with  derision 
by  that  court.  The  unwarranted  conceit  that  the  separate  acts  of 
Miller,  Phelps,  Keenan,  Moloney  and  DeLacey,  were  parts  of  the 
"original  conspiracy,"  done  "in  furtherance  of  the  common  de- 
sign," was  rejected  by  the  Court  of  Appeals.  A  man  may  not  be 
able  to  explain  or  defend  the  actions  of  another,  while  he  may  be 
able  to  defend  and  explain  his  own. 

It  has  been  said  that  the  Sharp  case  does  not  offer  a  proper  con- 
trast because  Sharp  was  a  millionaire,  and  therefore  ineligible  to  the 
penitentiary.  It  is  claimed  that  had  the  anarchists  been  rich  the 
errors  in  their  case  would  have  reversed  the  judgment.  This  does 
not  weaken  the  present  argument;  it  is  merely  a  repetition  of  the 
familiar  truism  that  capital  punishment  has  been  abolished  in  Illi- 
nois except  in  the  case  of  the  poor. 

THE    STATE    CONFESSES    AWAY    THE    CASE. 

"Thine  own  mouth  condemneth  thee;  yea,  thine  own  lips  testify 
against  thee."  This  reproach  is  fastened  upon  the  state's  attorney, 
and  the   judge  who    tried  the  anarchists.     Their  own  lips  testify 


A   RKVIKW  OK    rilK  ANARCHIST  c:aSE. 


47 


ai;aiiist  them.  T1k'\-  plcadctl  w  itli  the  governor  to  respite  Fielden, 
and  their  prayer  is  an  indictment  against  themselves;  an  indictment 
more  terrible  than  the  snare  with  sixty-nine  deatl-falls  which  the\- 
set  tor  the  anarchists.  To  hang  Parsons  and  spare  Fielden  was  il- 
logical, and  the  reasons  given  for  the  anomaly  change  the  execution 
of  Nov.  II  into  a  sacrifice,  a  punishment  into  a  martyrdom,  fudge 
(lary  and  Mr.  Grinnell  begged  clemency  for  Fielden  on  the  ground 
that  the  e\idence  did  not  justify  the  \erdict  and  the  sentence.  The 
e\-idence  that  convicted  Fielden  convicted  the  others,  and  the  argu- 
ment for  him  applies  to  all. 

In  Judge  Gary's  letter  to  the  governor  he  says  : 

There  is  no  evidence  that  Fielden  knew  of  any  preparation  to 
do  the  specific  act  of  throwing  the  bomb  that  killed  Degan. 

This  astonishing  statement  is  indorsed  in  writing  by  Mr.  Grin- 
nell. It  is  a  remarkable  act  of  self-stultification,  because  Judge 
(iary,  when  asked  at  the  trial  to  instruct  the  jury  that  such  evidence 
was  necessary  in  order  to  convict  a  man  of  murder,  refused  to  do 
so.  It  is  more  criminating  still  because  Judge  Gary  began  his  let- 
ter by  referring  the  governor  to  the  decision  of  the  Supreme  Court 
for  '-a  history  of  Fielden's  crime."  This  was  an  ungrateful  return 
for  the  leniency  shown  by  the  Supreme  Court  to  the  mistakes  made 
by  Judge  Gary  at  the  trial.  His  assertion  that  there  was  no  evi- 
dence that  Fielden  knew  of  any  preparation  for  the  bomb  throwing 
is  a  sardonic  censure  of  the  decision  itself,  because  the  Supreme 
Court  laboriously  tries  to  show  from  tlie  evidence  that  Fielden  did 
know  about  those  preparations,  and  that  he  was  the  very  man  who 
gave  the  signal  to  throw  the  bomb.  The  court  dwells  upon  the  evi- 
dence that  Fielden  began  the  affray  by  firing  into  the  ranks  of  the 
police,  and  they  note  especially  the  testimony  of  six  men  who  swore 
positively  that  they  saw  Fielden  shoot  at  the  policemen.  The  court 
also  sneers  away  the  testimony  of  six  other  men  who  swore  thev  did 
not  see  him  fire.  The  Supreme  Court  was  deceived  as  the  jury  was 
deceived  by  the  cunning  suggestion  that  the  word  "  peaceable  "  used 
by  Fielden  just  before  the  bomb  throwing,  was  the  English  equiva- 
lent to  the  German  word  "  Ruhe,"  said  to  be  the  signal  cry  agreed 
upon  to  rally  the  armed  sections  whenever  it  should  appear  in  the 
Arbeiter  Zeitung.  Some  other  suspicious  acts  of  preparation  per- 
formed by  Fielden  on  Tuesda}-  night,  and  previouslv;  are  heavih- 


4S  THE  TRIAL  OF  THE  JUDGMENT. 

referred  to  by  the  Supreme  Court  in  its  "  history  of  Fielden's  crime." 
The  evidence  against  Fielden  was  far  more  deadly  than  the  evi- 
dence against  Parsons  and  the  others.  False,  twisted  and  ambigu- 
ous though  most  of  it  was,  it  brought  him  closer  to  the  bomb-throw- 
ing than  any  of  the  rest,  both  in  word  and  deed.  That  Spies  lighted 
the  fuse  is  no  longer  believed  by  anybody.  In  iact,  it  was  from 
Fielden  that  the  prosecution  traced  its  threads  of  circumstance  to 
the  "  co-conspirators."  With  the  evidence  against  Fielden  gone, 
there  is  little  or  nothing  left  to  implicate  some  of  the  others,  and 
especially  Parsons.  They  were  hanged  on  the  theory  that  they 
were  Fielden's  accomplices.  Unless  the  state's  attorney  can  tie  them 
tO'Fielden,  he  cannot  connect  them  with  the  crime  at  all.  If  there  is  no 
evidence  to  sustain  the  charge  of  murder  against  Fielden  the  pun- 
ishment of  Parsons  has  no  legal  support.  Convinced  of  that,  the 
Supreme  Court  devotes  more  attention  to  Fielden  than  to  any  of 
the  others,  and  with  weary  travail  tries  to  fasten  upon  him  a  direct 
agency  in. the  killing  of  Degan. 

When  did  Mr.  Grinnell  discover  that  there  was  "no  evidence" 
of  guilty  knowledge  against  Fielden?  Judge  Gary  may  have  dis- 
covered it  as  soon  as  he  found  time  to  take  a  calm  review  of  the 
trial.  But  when  did  Mr.  Grinnell  find  it  out?  Months  after  the 
trial,  he  pleaded  hard  before  the  Supreme  Court  for  Fielden's  death. 
Did  he  know  then  that  Fielden  was  an  innocent  man?  If  not,  when 
did  he  first  suspect  it?  At  the  March  term,  1887,  in  his  brief  and 
argument  before  the  Supreme  Court,  Mr.  Grinnell  contended  strongly 
for  Fielden's  guilt.  He  dwelt  long  and  earnestly  upon  Fielden's 
preparations.  In  order  to  give  some  legal  color  to  the  action  of  the 
police,  he  asserted  that  Fielden's  inflammatory  appeal  to  the  crowd 
to  "kill  the  law,"  to  "stab  it,"  to  "throttle  it,"  was  reported  to  the 
police  inspector,  and  because  the  crowd  had  become  excited  by 
Fielden's  oratory,  the  police  were  marched  up  to  the  meeting.  He 
dramatized  the  tragedy  and  made  Fielden  the  principal  actor  in  it. 
"  Here  come  the  bloodhounds,"  said  Fielden;  "  you  do  your  duty 
and  i  will  do  mine."  Mr.  Grinnell  tried  to  show  the  connection 
between  Fielden's  word  "peaceable,"  the  instant  throwing  of  the 
bomb  by  somebody  else,  and  ])istol  firing  by  Fielden.  Said  Mr. 
Grinnell  : 

Before  the  police  appeared  Fielden  made  a  speech  not  only  in- 
flammatory and  incendiary  in  character,  but  actually  seditious  and 


A  REVIEW  ()E    THE  ANARCHIST  CASE. 


49 


treasonable.     This  speech  was  a  direct  enc()ura,uemcnl   to   do  the 
very  act  which  was  done  that  night. 

That  is  the  way  Mr.  Grinnell  addressed  the  Supreme  Court  in 
March.  In  November  he  joins  with  Judge  Gary  in  saying  to  the 
governor  of  the  state  "  There  is  no  evidence  that  Fielden  knew  of 
any  preparation  to  do  the  specific  act  of  throwing  the  bomb  that 
Ivilled  Degan."  Then,  of  course,  Fielden  could  not  be  guilty  of  the 
murder  of  Degan  by  the  throwing  of  that  bomb. 

The  dark  suspicion  must  ever  rest  on  Mr.  Grinnell,  that  he  knew 
Fielden  was  innocent,  just  as  well  in  March,  when  he  was  pleading 
to  the  Supreme  Court  for  the  unfortunate  man's  death,  as  he  knew 
it  in  November,  when  he  was  pleading  to  the  governor  for  his  life. 
His  confession  converts  the  whole  trial  and  its  fatal  catastrophe  into 
a  cob-web  of  solecisms,  entangling  judge,  jury,  counsel,  the  Su- 
preme Court,  and  the  governor. 

If  Fielden  is  innocent  of  murder,  why  is  he  imprisoned  in  the 
penitentiary;  and  why  was  Parsons  hanged?  Truly,  there  must  be 
guilt  somewhere.  The  Supreme  Court  makes  Parsons  guilty  on  the 
ground  that  he  was  present  at  the  Haymarket  meeting  and  spoke. 
The  court  acknowledged  that  he  was  in  Cincinnati  on  Monday,  and 
knew  nothing  at  all  about  the  pretended  conspiracy  claimed  to 
have  been  formed  that  night.  It  was  conceded  that  the  s|)eech  of 
Parsons  was  moderate  in  tone,  that  he  had  his  wife  and 
children  with  him,  that  he  left  before  the  arrival  of  the  police, 
did  no  pistol  shooting,  gave  no  signal,  and  was  not  present 
when  the  bomb  was  thrown.  But  he  was  present  at  the  meeting  in 
company  and  association  with  Fielden,  and  thus  adopted  the  ''  con- 
spiracy" of  Monday  night,  although  he  never  knew  a  word  about  it. 
He  was  Fielden's  accomplice,  and  for  that  he  was  hanged.  After 
the  acknowledgment  made  by  Judge  Gary  and  Mr.  Grinnell,  there  is 
literally  nothing  left  against  either  Fielden  or  Parsons,  except  revo- 
lutionary rant,  and  a  sanguinary  newspaper.  Seditious  writing  and 
inflammatory  speech  are  not  murder,  but  capital  punishment  in- 
flicted upon  men  for  either  offense,  is  murder. 

Offended  justice  sometimes  takes  revenge  in  a  grotesque  and 
comical  way.  In  this  case  it  uses  Judge  Gary  and  Mr.  Grinnell  to 
draw  black  lines  around  the  notorious  decision  which  condemned 
seven  men  to  die.  The  long  tragedy  of  errors  enacted  by  Judge 
Garv  and  Mr.  Grinnell  is  honored   in  all  its  mocker\-  of  law  bv  the 


THE  TRIAL  OF  THE  JUDGMENT. 


approval  of  the  Supreme  Court.  Through  a  labyrinth  of  cross-roads 
and  by-ways,  the  Supreme  Court  tracked  Fieldeu  from  February, 
1885,  to  May,  1886,  and  contended  that  every  step  he  took  was  a 
preparation  for  the  throwing  of  the  bomb.  Though  most  of  it  was 
obviously  false,  the  Supreme  Court  accepted  all  the  testimony 
against  Fielden  as  true,  and  called  it  ^^ proof y  Such  parts  of  the 
play  as  it  could  not  approve  it  excused,  and  triumphantly  claimed 
that  under  the  evidence  Fielden  was  properly  convicted  of  murder 
in  the  first  degree.  Now  come  the  chief  actors  in  the  awful  drama, 
and  pointing  to  the  decision  of  the  Supreme  Court  for  a  "history 
of  Fielden's  crime,"  declare  "  there  is  no  evidence  that  Fielden 
knew  of  any  preparation  to  do  the  specific  act  of  throwing  the  bomb 
that  killed  Degan." 

THE    TRIBUTE     OF    PRAISE    TO    FIELDEN. 

Judge  Gary  in  his  appeal  for  Fielden  describes  him  as  "  an  hon- 
est, industrious,  and  peaceable  laboring  man,"  having  "  a  natural 
love  of  justice  "  and  "  an  impatience  at  all  undeserved  suffering." 
He  also  says  that  Fielden  "  was  more  a  misguided  enthusiast  than 
a  criminal."  He  also  testifies  that  "in  what  Fielden  said  in  court 
before  sentence  he  was  respectful  and  decorous."  Mr.  Grinnell 
adopts  this  tribute  and  says  that  Fielden's  address  "was  decorous, 
respectful  to  the  law,  and  commendable."  There  is  more  self-con- 
demnation in  this  praise  than  the  judge  or  the  state's  attorney  sus- 
pected when  they  gave  it.  Fielden's  address  is  a  terrible  arraign- 
ment of  them  and  their  methods.  Excepting  Robert  Emmett's 
death  speech  in  which  he  rebuked  Lord  Norbury,  there  is  nothing 
equal  to  it  of  its  kind.  The  famous  reply  of  Thomas  Francis  Mea- 
gher, when  asked  why  sentence  of  death  should  not  be  passed  upon 
him,  although  more  polished  and  stately,  is  not  so  "  strong  in  hon- 
esty," so  bold  in  utterance,  so  truthful  in  assertion,  so  convincing  in 
denial,  so  pathetic  in  statement,  and  so  manly  in  justification  of  his 
motives,  as  the  speech  of  Samuel  Fielden  in  answer  to  the  same 
question.  Fielden's  withering  prophecy  is  equal  to  anything  in  the 
speech  of  Emmett.  Solemnly  addressing  Judge  Gary  and  Mr. 
Grinnell,  he  said  : 

We  have  been  tried  by  a  jury  that  has  found  us  guilty.  You 
will  be  tried  by  a  jury  now  that  will  find  you  guilty. 

Mr.  Grinnell  certifies  in  writing  to   the  governor  that  Fielden's 


■A  KK\IK\V  OK    rili:  AXARCIIIST  CASE. 


51 


accusatory  warning  is  "  commendable,"  and  in  that  sentiment  Mr. 
(".rinnell  is  right.  The  trial  is  now  going  on  and  the  prophecy  will 
be  fulfilled.  If  this  man  is  "  more  a  misguided  enthusiast  than  a 
criminal,"  why  is  he  doomed  to  sjjcnd  his  life  in  the  ])enitentiary  ? 

In  his '•  commendable  "  speech,  Fielden  was  not  at  all  timid  iu 
criticising  the  unfair  tactics  employed  by  the  jirosecution.  It  must 
have  surprised  Mr.  Grinnell  to  hear  so  much  good  law  from  the 
lips  of  an  unlettered  and  ungrammatical  teamster.  Reading  the 
speeches  of  the  teamster  and  the  state's  attorney,  it  is  easy  to  see 
that  in  the  art  of  law  the  lawyer  was  far  more  skillful  than  the 
teamster,  while  in  the  science  of  law  the  teamster  was  greatly  supe- 
rior to  the  lawyer.  It  must  have  come  to  the  teamster  by  moral 
intuition,  for  he  never  could  have  studied  the  books,  that  law  has 
its  roots  deep  down  in  the  eternal  principles  of  truth  and  honesty; 
and  therefore  whatever  contradicts  or  opposes  these  is  probably  not 
law.  For  instance,  he  thought  that  the  evidence  in  the  case  ought 
to  correspond  with  the  allegations,  and  be  confined  to  the  issues 
made  by  the  plea  of  not  guilty.  The  attorney  thought  not.  In 
this  difference  of  opinion  the  law  was  with  the  teamster,  and  against 
the  lawyer.  So  again,  the  teamster  thought  that  the  trial  ought  to 
be  confined  closely  to  the  charge  in  the  indictment  and  not  be  di- 
rected to  the  miscellaneous  accusations  wandering  about  the  streets. 
The  attorney  thought  otherwise;  and  here,  also,  the  teamster  had 
the  law,  and  the  lawyer  had  it  not.  Again,  the  teamster  thought 
that  a  false  issue  should  not  be  substituted  for  the  true  one  before 
the  jury.  The  attorney  disagreed  with  him;  and  in  this  dispute 
likewise,  the  law  was  on  the  side  of  the  teamster.  The  lawyer's 
art  is  literally  overpowered  by  the  simplicity  of  the  teamster's  as- 
tonishment at  the  legerdemain  by  which  one  issue  was  substituted 
for  another.     Referring  to  his  indictment  for  murder,  he  said: 

I  answered  that  charge  in  this  court.  My  attorneys  in  my  be- 
half met  that  charge;  we  brought  evidence  to  meet  and  rebut  the 
charge  of  murder.  After  all  our  evidence  w^as  put  in,  after  all  the 
speeches  had  been  made  on  both  sides,  with  the  exception  of  one 
(the  closing  speech  of  the  state's  attorney)  we  were  suddenly  con- 
fronted with  the  fact  that  the  charge  of  murder  had  not  been 
proven.  When  all  the  witnesses  had  been  heard  I  am  suddenly 
told  that  I  am  being  tried  for  "  anarchy."  If  I  had  known  that  I 
was  /'dug'  tried  for  a/iarr/iv,  F  could  have  ansuwred  t/iat  charge. 

The  unconscious  irony  in  that  statement  cuts  like  a  sword;   and 


52  THK    TKIAI,  OF  THE  JUnCMEXT. 


the  legal  right  of  a  prisoner  to  know  specificially  what  he  is  being 
tried  for  is  expressed  in  the  last  sentence  as  truthfully  as  Marshall, 
Story,  or  Mansfield  could  have  said  it.  Further  on,  addressing 
Mr.  Grinnell  personally,  the  teamster  gave  him  another  lesson  in 
good  law.     He  said  : 

The  duty  of  a  prosecuting  attorney  is  to  see  to  it  that  no  guilty 
man  shall  escape  if  he  can  possibly  prevent  it.  It  is  also  his  duty 
to  see  to  it  that  no  innocent  man  shall  suffer  for  any  crime. 

Mr.  Grinnell  may  not  have  got  so  far  as  that  in  his  legal  studies, 
but  when  the  teamster  spoke  those  words  to  him  he  spoke  the  law. 
Still  addressing  Mr.  Grinnell,  the  teamster  said: 

Lawyers  have  a  peculiar  code  of  morals.  Their  success  in  their 
particular  avocation  depends  upon  their  gaining  suits.  And  I  am 
afraid  there  are  lawyers  to  be  found  who  care  little  whether  their 
suit  is  right  or  in  the  interest  of  justice  and  truth,  so  long  as  they 
can  gain  their  case  and  make  a  reputation  for  themselves. 

That  is  part  of  the  speech  which  Mr.  Grinnell  told  the  governor 
was  "  decorous,  respectful  to  the  law  and  commendable."  It  is  to 
be  regretted  that  Fielden  cannot  return  the  compliment,  for  it  would 
be  gross  flattery  to  say  that  Mr.  Grinnell's  address  to  the  jury  was 
decorous,  commendable  or  even  respectful  to  the  law. 

It  is  a  vulgar  error  that  the  fantastic  tricks  played  in  the  courts 
by  lawyers  of  inferior  caste  are  law.  They  are  not  law.  They  are 
simply  adulterations  like  sand  in  sugar,  or  chalk  in  milk.  In  trials 
of  serious  moment  they  may  become  felonious  assaults  upon  the 
law,  a  branch  of  that  social  destruction  called  anarchy.  The  right 
of  an  accused  man  to  be  tried  by  a  fair  and  impartial  jury  of  his 
peers  is  as  much  a  part  of  our  system  called  government  as  any 
other  feature  of  it.  An  infringement  of  that  right  by  men  clothed 
in  judicial  ermine  is  as  much  a  deed  of  anarchy,  an  attack  upon 
the  government,  as  is  an  infringement  of  the  right  of  property  by 
men  clothed  in  rags.  There  are  practitioners  at  the  bar,  well  skilled 
in  the  mechanism  of  their  jirofession,  who  are  totally  innocent  of 
the  science  of  the  law.  They  know  the  forms  of  the  law,  but  the 
spirit  of  it  they  have  not  the  moral  sense  to  comprehend.  They 
are  like  the  blacksmith  who  thinks  he  must  be  a  veterinary  surgeon 
because  he  knows  how  to  nail  bits  of  iron  upon  a  horse's  feet. 
There  is  a  curse  pronounced  in  the  bible  against  him  "  who  taketh 
a  reward  against  the  innocent,"  meaning,  no  doubt,  the  lawyer  who, 


for  a  fee,  prosecutes  an  innocent  man,  or  defends  the  wrong  side  of 
a  cause. 

All  is  not  gokl  that  glitters;  all  is  not  law  that  punishes.  The 
vindictive  sentence  of  a  court,  ratified  by  the  chief  magistrate,  may- 
be only  an  official  form  of  anarchy,  a  trespass  on  the  government. 
Law  is  a  plan  of  justice,  and  even  the  statutes  of  the  land  may  be 
hostile  to  the  law.  The  Illinois  statute  of  conspiracy  is  an  invasion 
of  the  law,  a  despotic  scheme  to  abolish  the  great  charter  of  Amer- 
ican liberty.  True,  men  may  be  imprisoned  by  its  authority,  antl 
even  hanged  by  the  executive  strength  behind  it,  but  after  all,  it  is 
not  law.  It  is  physical  force  anarchy.  The  so-called  fugitive  slaxe 
law  was  misnamed.  It  should  have  been  called  the  fugitive  sla\e 
statute.  People  are  now  living  who  remember  when  the  man  who 
would  not  obey  it  was  not  a  good  citizen.  It  is  now  agreed  by 
everybody  that  the  man  who  did  obey  it  was  a  bad  citizen.  Its  ad- 
vt)cates  have  all  passed  into  obscurity  or  contempt.  When 
Fielden,  the  teamster,  informed  the  state's  attorney  that  the  consti- 
tution prohibited  restriction  of  speech  or  of  the  press,  he  gave  him 
a  lesson  in  law  for  which  he  ought  to  be  grateful.  It  was  an  act  of 
kindness,  "decorous  and  commendable."  Although  that  part  of  the 
constitution  has  been  repealed  in  Illinois,  the  act  of  repeal  is  void. 
Anarchists  may  sit  upon  the  Supreme  bench,  as  upon  a  cobbler's 
bench.  When  judges  sworn  to  declare  the  law  give  judgment 
against  the  law,  they  are  anarchists  and  their  decrees  are  anarchy. 

THE  SUPREME  COURT  AS  PROSECUTOR. 

It  would  be  a  "  tiresome  "  task  to  analyze  the  opinion  of  the  Su- 
preme Court,  and  show  its  prosecutor  style  of  argument.  Everything 
is  taken  for  granted  against  the  defendants  and  in  favor  of  the  state. 
The  opinion  itself  is  greatly  indebted  to  the  prosecutor's  brief,  both 
for  its  diction  and  its  law.  A  few  specimens  of  it  have  alreadv 
been  given;  a  few  others  may  be  added;  and  from  those  examples 
the  character  of  the  whole  opinion  may  be  judged.  Be  it  remem- 
bered that  much  of  the  testimony  relied  on  by  the  Supreme  Court 
was  untrue;  much  more  of  it  was  strongly  disputed  both  by  its  own 
inherent  improbability,  and  by  good,  reliable,  and  affirmative  evi- 
dence against  it.  By  judicial  alchemy,  all  testimony  for  the  state 
becomes  transmuted  into  "  evidence,"  and  all  "  evidence  "  is  con- 
\erted  into  "proof."    By  the  inverse  process,  all  proof  made  bv  the 


-_^  THE    TKIAI.  Ol-    THE  JUD(;MEX' 


ilefendants  is  changed  into  inferior  evidence,  and  that  again  into 
worthless  testimony.  The  burthen  of  proof  is  taken  from  the  state 
and  the  presumption  of  innocence  from  the  accused.  For  example, 
there  was  no  evidence  that  Spies  had  answered  the  Most  letter,  yet 
the  Supreme  Court  assumed  the  fact  conclusively  against  him. 
Spies  was  examined  on  the  question  and  said  that  he  could  not 
remember  whether  he  had  answered  it  or  not.  This  was  probably 
the  truth,  for  he  might  have  denied  positively  that  the  letter  was 
answered.  The  effect  of  this  testimony,  which  ought  to  have  counted 
in  favor  of  the  prisoner,  was  turned  against  him  by  the  Supreme 
Court  in  the  following  clumsy  way: 

He  doesn't  say  that  he  didn't  answer  it,  but  that  he  doesn't  re- 
member whether  he  answered  it  or  not.  We  do  not  think,  however, 
that  it  can  be  regarded  as  an  unanswered  letter.  To  all  intents  and 
purposes  it  was  answered. 

A  letter  found  in  a  prisoner's  desk  is  either  an  answered  letter  or 
it  is  not.  The  burthen  of  proof  that  it  was  answered  is  on  the 
state.  The  prisoner  is  not  bound  to  prove  the  negative.  That 
it  was  answered  "  to  all  intents  and  purposes  "  is  illegal  guess  work. 
When  a  court  relieves  a  prosecutor  from  the  burthen  of  proof  by 
such  uncertain  reasoning,  the  judges  plead  the  cause  instead  of  judg- 
ing it,  "  to  all  intents  and  purposes." 

In  another  place  the  Supreme  Court  conclusively  assumes  that 
one  man  must  have  heard  what  another  one  said  at  a  riotous  meet- 
ing where  hundreds  of  men  were  fighting,  and  where  some  of  them 
were  killed  and  wounded  by  the  police.     Hear  the  court: 

He  was  present  on  the  afternoon  of  May  3d,  1886,  at  the  at- 
tack of  a  mob  of  strikers  upon  a  manufacturing  establishment  in  the 
southwest  part  of  the  city,  and  must  have  heard  the  address  of 
Spies  on  that  occasion. 

Dubious  testimony  for  the  state  is  given  generous  welcome  by 
the  Supreme  Court  and  treated  with  high  respect,  while  the  most 
positive  proof  in  favor  of  the  accused  is  grudgingly  admitted,  and 
then  with  affected  misgiving  and  doubt.  For  instance,  it  is  entirely 
undisputed  that  Engel  was  not  present  when  the  bomb  was  thrown, 
a  circumstance  which  tells  fearfully  against  his  conviction.  This 
fact  is  conceded  by  the  Supreme  Court  in  this  unwilling  way: 

The   evidence  tends   to   sho70    that   Engel   was   at  his  home  on 


A   KEVIKW  OK    THE  ANARCHIST  CASE. 


55 


Milwaukee   avenue,   near  the   Havmarket,   when  the   explosion   oc- 
curred. 

There  was  no  "  tends  to  show  "  about  it;  the  evidence  did  show 
it,  and  there  was  no  ])retense  to  the  contrary.  Worse  yet,  an  ob- 
scure sentence  is  framed  by  the  court  to  cover  an  unfair  insinuation 
of  guilt,  or  at  least  of  proximity  to  it.  It  is  unworthy  a  high  tri- 
bunal to  palter  with  phrases  of  double  meaning.  Does  the  court  mean 
that  Engel's  home  was  near  the  Haymarket,  or  that  Milwaukee 
avenue  is  near  the  Haymarket?  An  important  matter,  because  one 
end  of  Milwaukee  avenue  is  only  a  few  blocks  from  the  Haymarket, 
while  the  other  end  of  it  is  three  or  four  miles  away.  Why  was  the 
])hrase  "near  the  Haymarket"  v/edged  into  that  part  of  the  opinion? 
It  must  have  been  to  implicate  Engel  by  a  suggestion  of  his  prox- 
imitv  to  the  tragedy.  It  is  in  suspicious  contrast  that  ''the  proof 
slunus''  is  a  phrase  never  used  to  describe  the  case  for  the  defend- 
ants. Wherever  it  occurs  it  is  descriptive  of  testimony  favorable  to 
the  state. 

Engel's  home  was  actually  a  mile  from  the  Haymarket,  and  he 
was  sitting  there  drinking  beer  in  a  social  way  with  friends  when  the 
bomb  was  thrown.  What  matter?  Evidence  put  to  the  torture  will 
give  any  answer  desired.  Presence  and  absence  stretched  on  the 
rack  by  the  Supreme  Court  of  Illinois  both  answer,  guilty.  Parsons 
was  hanged  for  being  present,  and  Engel  for  being  absent.  Provoked 
by  the  perverse  fact  of  Engel's  absence,  the  court,  instead  of  credit- 
ing him  with  it,  debits  it  against  him  thus: 

That  some  of  the  conspirators  might  be  at  home  when  the  col- 
lision with  the  police  should  happen  was  a  contingency  that  was 
provided  for  by  the  terms  of  the  plot;  in  the  event  of  a  collision  at 
night  a  committee  appointed  to  watch  the  movement  was  to  report 
to  the  armed  men  at  their  homes. 

With  discreditable  obstinacy  the  facts  refuse  to  agree  with  that 
unreal  speculation.  Nothing  of  the  sort  followed;  and  as  for  Engel, 
the  witness  for  the  state  against  him  acknowledged  that  when  he 
heard  of  the  throwing  of  the  bomb  he  said,  "The  man  who  threw  it 
did  a  very  foolish  thing,"  and  advised  his  friends  and  the  informer 
also  to  go  home. 

The  habit  of  paltering  in  a  double  sense  grows  upon  the  court. 
It  is  mere  cunning,  not  intellect.     It  argues  by  hint  and   innuendo. 


THE  TRIAL  OF  THE  JIDCMEXT, 


as  in   the  plea   against   Xeebe,  making   iiim  directly  responsible  for 
the  Arbeiter  Zsitung;  the  court  says: 

This  paper  was  owned  by  a  corporation  in  which  Spies,  Schwab, 
Fischer  and  Neebe  were  stockholders. 

The  corporation  was  the  Socialistic  Publishing  Company,  and 
the  statement  of  the  court,  while  literally  exact,  is  pregnant  with  a 
hint  that  Neebe  was  directly  the  owner  of  the  Arbeiter  Zeitung,  and 
.a  stockholder  in  the  usual  meaning  of  the  word;  whereas,  he  was 
only  remotely  a  stockholder  by  reason  of  membership  with  hun- 
dreds of  others  in  the  Socialistic  Publishing  Company.  Neebe  held 
stock  in  the  "  corporation  "  to  the  amount  of  five  dollars,  as  all  the 
other  members  did.  Thus  the  statement  of  the  court,  while  literally 
true,  makes  a  false  impression.  A  little  further  on  the  disguise  is 
thrown  off  altogether,  and  the  insinuation  against  Neebe  becomes  a 
positive  accusation,  thus: 

Neebe  was  one  of  the  stockholders  of  the  Arbeiter  Zeitung. 

Conceding  the  suggestion  to  be  fact,  a  stockholder  in  a  newspa- 
per is  not  criminally  liable  for  its  articles.  The  Supreme  Court 
was  curiously  wrong  in  supposing  that  the  fact  of  owning  stock  in  a 
newspaper  is  valuable  evidence  against  a  man  accused  of  murder. 

Important  issues  in  dispute  are  coolly  decided  against  the  pris- 
oners on  "  the  weight  of  evidence,"  as  if  the  whole  business  were  a 
civil  suit  for  twenty  dollars  or  so,  instead  of  the  trial  of  eight  men 
for  murder.     Says  the  court: 

The  weight  of  evidence  is  in  favor  of  the  conclusion  that  Degan 
was  killed  by  some  member  of  the  International  Association. 

And  in  another  place  the  court  remarks: 

We  think  the  weight  of  evidence  is  in  favor  of  the  state  upon 
this  subject. 

All  that  apologetic  plea  for  '•  the  weight  of  evidence"  is  lawyer's 
jargon  unauthorized  by  the  rules  of  evidence  in  capital  cases.  In  a 
matter  of  life  or  death  the  weight  of  evidence  on  all  material  issues 
should  be  heavy  enough  to  amount  to  moral  certainty  in  favor  of 
the  state,  otherwise  the  benefit  of  the  doubt  should  be  given  to  the 
defendant.  The  truth  is  that  the  scales  used  by  the  Supreme  Court 
for  weighing  the  evidence  were  lop-sided  and  partial;  the  result  was 
a  wrcmg  that  never  can  be  righted  in  this  world. 

There  is  no  cohesion  or  affinity  between  the  numerous  impossi- 


A   RF.VIKW  OF    THK   ANARCinST  CASK.  ^j 


ble  "  conspiracies,"  imagined  by  the  Supreme  Court;  nor  is  there 
any  logical  connection  between  their  several  j)ar(s.  Imoui  tlie  be- 
ginning to  the  end  of  the  record  that  changeable  conspiracy  on 
which  the  scaffold  rested  never  appears  in  an\-  legal  shai)e  that  may 
be  identified;  and  whenever  for  a  moment  it  seems  to  take  visible 
form,  it  instantly  vanishes  again,  because  it  will  not  fit  the  evidence 
made  for  it.  The  Supreme  Court  is  continually  dropping  one  con- 
spiracy and  picking  uj)  another,  then  dropping  that  and  picking  it 
up  again.  After  laboring  through  pages  of  argument  to  show  a  con- 
spiracy growing  out  of  the  separate  actions  of  eight  men  for  sixteen 
months  of  their  lives,  the  court  abandons  it.  and  picks  up  the  brand 
new  conspiracy  of  May  3d,  and  when  that  also  refuses  to  corres- 
pond with  the  catastrophe,  the  court  absurdly  lays  the  blame  upcMi 
the  defendants,  who  were  too  perverse  to  carry  out  the  conspiracy 
invented  for  them  by  the  Supreme  Court.  Compelled  to  admit  this 
disagreement,  the  court  is  reduced  to  the  extremity  of  explaining  it 
thus; 

Special  action  of  the  authorities  may  have  operated  to  change 
the  original  conspiracy. 

So  the  original  conspiracy  was  changed,  and  a  secondary  affair 
substituted  for  it,  of  which  no  definite  specifications  have  ever  been 
set  forth.  As  the  crime  of  murder  could  not  be  brought  home  to 
any  of  the  defendants,  the  humiliating  confession  is  made  at  last 
that  they  were  hanged  for  anarchy;  or,  in  the  funnv  language  of  the 
Supreme  Court,  for  their  "queer  doctrines."  The  court  itself  often 
loses  the  murder,  and  forgets  all  about  it  in  its  gratuitous  reproba- 
tion of  anarchy.  No  wonder  that  thousands  of  people  in  Illinois 
believe  that  anarchy  was  the  crime  charged  in  the  indictment.  The 
false  and  misleading  issues  raised  by  the  indictment  in  order  to 
bring  men  to  the  scaffoUl  were  truthfully  described  by  Lyman  Trum- 
bull, a  lawyer  and  statesman  of  national  fame,  a  man  by  no  means 
partial  to  the  anarchists  or  their  j)rinciples.     He  said; 

I  am  not  altogether  satisfied  with  the  manner  in  which  the  trial 
of  the  anarchists  was  conducted.  It  took  place  at  a  time  of  great 
public  excitement,  when  it  was  about  impossible  that  they  could  have 
a  fair  and  impartial  trial.  A  terrible  crime  had  been  committed 
which  was  attributed  to  the  anarchists,  and  in  some  respects  the  trial 
had  the  appearance  of  a  trial  of  an  organization  kno7vn  as  anarch- 
ists, rather  than  of  persons  indicted  for  the  murder  of  Began.     Sev- 


58 


THE  TRIAL  OF  THE  JUDGMENT. 


eral  of  the  condemned  were  not  at  the  meeting  where  the  bomb  was 
thrown,  and  none  of  them,  as  I  understand,  was  directly  connected 
with  the  throwing. 

Some  abstract  principles  relating  to  conspiracy  and  some  general 
doctrine  concerning  accessories,  are  correctly  stated  by  the  Supreme 
Court,  but  this  is  a  familiar  artifice  common  at  the  bar.  Advocates 
get  along  with  it  finely  until  some  logical  judge  requires  them  to  fit 
the  axioms  to  the  case  on  trial.  Then  they  fail,  as  the  Supreme 
Court  of  Illinois  fails  to  make  its  law  fit  the  facts  in  the  anarchist 
case.  That  accessories  to  a  crime  are  equally  guilty  with  the  prin- 
cipal may  be  good  law,  but  it  does  not  follow  that  all  the  princi- 
pal's cousins  are  accessories  with  him  because  of  consanguinity,  nor 
that  men  are  accomplices  with  him  because  they  belong  to  the  same 
lodge,  church  or  association.  Yet  this  was  the  fallacy  of  the  court. 
Evidence  that  would  never  have  been  allowed  to  prove  men  part- 
ners in  a  fifty-dollar  contract  was  held  competent  to  prove  them 
partners  in  the  crime  of  murder. 

THE    REPEAT.    OF    THE    CONSTITUT[ON. 

English  history  is  blurred  with  tales  of  political  persecutions  dig- 
nified as  trials  for  treason,  murder,  and  conspiracy  to  murder.  The 
judgment  of  posterity  upon  them  is  that  those  trials  themselves  were 
judicial  and  executive  conspiracies  to  murder  the  defendants.  Rarely 
now  do  historians  speak  of  the  execution  of  Algernon  Sidney.  They 
tell  of  his  "  murder."  So  they  tell  us  about  the  murder  of  Russell, 
of  Raleigh,  of  More,  and  Alice  Lyle,  yet  those  murders  were  all 
done  by  the  government;  judges  gave  the  law,  and  juries  gave  the 
verdicts  against  the  defendants  in  every  case.  Shall  we  ha\e  in  the 
United  States  a  parallel  history?  It  is  very  significant  that  the 
charge  of  murder  against  the  anarchists  was  abandoned  the  very  mo- 
ment the  drop  fell  on  the  nth  of  November.  The  false  expedient 
had  served  its  purpose  and  was  then  dropped.  Even  the  very 
newspapers  that  flogged  the  passions  of  the  people  up  to  madness 
never  speak  of  the  anarchists  as  murderers,  nor  of  their  crime  as 
murder.  They  always  speak  of  the  men  as  anarchists,  and  of  their 
crime  as  anarchy.  There  is  method  in  this,  because  death  for  an- 
archy contains  more  warning  in  it  than  death  for  murder.  It  strikes 
more  terror  to  the  multitude.  It  is  more  novel  and  picturesque; 
more  comprehensive,  too,  because  a  mere  strike  for  more  wages  and 


A  REVIEW  OF  THE  ANARCHIST  CASE. 


59 


less  hours,  a  meeting,  a  picnic,  a  procession,  a  trades  union,  a  pub- 
lic speech,  or  a  private  conversation,  may  each  and  all  be  anarchy 
according  to  the  i)recedent  set  1)\'  the  Sui)renie  Court  of  Illinois. 
Nobody  coniplinietits  the  go\'ernor,  the  Supreme  Court,  Judge 
Gary,  or  Mr.  Crinuell  for  hanging  men  for  murder.  There  is  no 
special  merit  in  that.  They  are  praised  because  they  strangled  men 
to  death  for  anarchy.  The  public  flatteries  and  rewards  are  be- 
stowetl  upon  them  because  of  the  popular  belief  that  those  magis- 
trates, in  their  zeal  to  stamp  out  anarchy,  trampled  on  the  law,  and 
violated  the  national  constitution  and  the  constitution  of  the  state. 
It  is  not  for  upholding  the  law,  but  for  overthrowing  it,  that  the 
popular  applause  is  given. 

It  is  a  bad  precedent,  the  beginning  of  "coercion"  for  Illinois. 
It  is  the  old  muzzle,  borrowed  from  the  antiquities  of  Europe,  and 
placed  on  lips  and  tvjje  in  Chicago.  It  has  already  demoralized 
our  officials  and  imi)osed  upon  them  the  duty  of  tyranny.  The 
mayor  of  Chicago,  when  he  repealed  the  constitution  of  the  Ignited 
States,  and  suspended  the  bill  of  rights,  was  merely  obeying  the 
wishes  of  his  constituents.  When  he  abridged  the  freedom  of  speech, 
when  he  "proclaimed"  certain  districts,  when  he  proscribed  certain 
music,  when  he  tied  up  public  meetings,  was  not  exercising  personal 
despotism,  for  which  probably  he  has  no  taste.  He  was  only  en- 
forcing the  despotic  will  of  the  '•  classes  "  against  the  "masses  "  of 
Chicago.  When  he  limited  the  freedom  of  the  people  called  anarchists, 
communists,  and  socialists,  he  was  only  yielding  to  the  dictation  of 
those  who  elected  him  to  office.  Indeed,  if  he  had  outlawed  them 
as  the  clan  McGregor  was  outlawed  in  the  olden  time,  his  action 
would  have  been  sustained. 

Only  last  spring  the  mayor  of  Chicago  and  the  governor  of  Illi- 
nois denounced  from  the  same  platform  the  "  coercion  "  policy  of 
Great  Britain.  Before  the  end  of  the  year  they  had  become  the 
chief  coercionists  of  America.  This  is  sometimes  called  the  "  irony 
of  fate,"  but  they  are  only  the  victims  of  popular  unreason,  not  its 
authors.  The  coercion  policy  which  takes  away  from  the  people 
the  right  of  speaking,  printing  and  meeting,  is  a  feeble  security  for 
public  order;  because  when  the  people  feel  that  the  law  is  for  their 
correction,  and  not  for  their  protection,  they  will  not  protect  the  law. 
When  they  see  their  magistrates  dishonor  the  law,  they  will  evade 
it  if  they   can.     The   history   of  Europe  shows   that  resistance  to 


6o  THE  TRIAL  OF  THE  JLTXIMENT. 


government  restraint  and  political  discipline  has  generally  been 
greater  than  the  act  resisted.  The  square  of  the  coercion  expresses 
the  quantity  of  resistance  to  it.  We  may  plug  up  Vesuvius,  but  the 
pent  up  fires  will  split  the  earth  open  somewhere  else.  When  the 
mayor  of  Chicago  dictated  what  music  should  be  played,  and  what 
should  not  be  played  at  the  funeral  of  the  anarchists,  he  was 
answered  by  a  song  of  defiance  right  from  the  coffin  of  Parsons. 
When  the  procession  turned  into  Fifth  avenue,  and  came  within 
hearing  of  the  City  Hall,  the  band  marching  behind  the  hearse 
struck  up  "  Annie  Laurie,"  the  song  that  Parsons  sung  in  the  con- 
demned cell  the  night  before  his  death.  It  rang  through  the  coim- 
cil  chamber,  and  mocked  the  feeble,  foolish  ''  proclamation  "  of 
the  mayor.     It  recalled  to  memory  the  taunting  menace  of  1859  : 

And  old  Brown;   Osowattomie  Brown, 

Will  trouble  you  more  than  ever, 
When  you've  nailed  his  coffin  down. 

When  the  mayor  forbade  the  tune  he  exceeded  his  authority; 
he  overstepped  the  law.  And  when  he  failed  to  enforce  his  order, 
his  office  lost  dignity  to  the  extent  of  the  disobedience  to  his  decree. 
He  should  not  have  made  any  order  except  a  legal  order,  and  that 
he  should  have  enforced  at  all  hazards. 

When  the  judges  of  England  held  their  offices  at  the  pleasure  of 
the  king,  they  declared  the  law,  not  as  it  was,  but  as  their  master 
wanted  it  to  be.  When  prosecuting  attorneys  aspired  to  the  bench 
they  earned  promotion  by  falsifying  the  law  to  please  the  sovereign. 
By  "  mean  arts  "  and  illegal  devices  they  sent  political  enemies  to 
the  scaffold  and  to  prison.  The  judges  are  free  in  England  now, 
and  the  law  can  no  longer  be  perverted  to  the  uses  of  the  crown. 
In  the  United  States  the  judges  hold  their  offices  at  the  pleasure  of 
the  sovereign  people,  and  those  judges  must  declare  the  law,  not  as 
it  is.  but  as  their  master  wills  it.  When  King  Populus  is  in  the 
humor  he  can  be  as  bigoted,  irrational  and  despotic  as  any  King 
Henry,  King  James,  or  King  George.  When  King  Populus  gets 
drunk  his  judicial  servants  must  make  the  law  drunk  too.  When  he 
demands  a  bloody  sacrifice  they  must  provide  the  \ictims.  He  can 
exact  illegal  judgments  from  his  courts  of  law  with  as  much  intoler- 
ance as  any  king  of  England  ever  did.  So,  too,  he  wraps  comfort- 
able robes  of  ermine  around  the  law  officers  who  pervert  the  law  to 
gratify    his    rage.     How  interesting  the  resemblance  between  the 


A  REVIEW  OF  THE  AXARCIIIST  CASE.  6l 


judical  appointments  of  King  James,  two  hundred  years  ago,  and 
the  appointments  of  King  Populus  to-day!  Already  Judge  Gary  has 
been  rewarded  with  another  term  of  office,  and  Mr.  Grinnell  has  been 
promoted  to  the  bench.  The  judges  of  the  Supreme  Court  will  be 
re-elected  also,  if  the  election  comes  on  soon;  if  late,  King  Populus 
may  be  sober  and  they  may  receive  reprimand  instead  of  robes,  as 
Hubert  received  reproaches  from  King  John  for  doing  the  very  deed 
that  the  king  bribed  and  commanded  him  to  do.  Populus  is  a  fickle 
king,  and  he  has  qualms  of  conscience  too,  as  other  kings  have  had. 
Let  the  ministers  to  his  wrath  claim  a  quick  reward  or  they  may  lose 
it  altogether. 

THE    SWIFT    VERDICT. 

The  swift  and  eager  verdict  of  the  jury  in  the  anarchist  case 
justifies  all  the  censure  which  has  been  cast  upon  the  trial.  They 
were  out  only  three  hours  altogether,  and  most  of  that  time  was 
occupied  in  fixing  the  punishment  of  Neebe.  The  trial  had  lasted 
eight  weeks,  the  indictment  contained  sixty-nine  counts;  there  were 
eight  men  on  trial;  the  evidence  amounted  to  volumes  of  all  sorts 
of  testimony,  some  of  it  applying  to  one  of  the  prisoners,  some  of  it  to 
another,  some  of  it  to  two  or  three  of  them,  and  scarcely  any  of  it 
to  all  of  them.  The  instructions  of  the  court  were  numerous  and  in- 
tricate, requiring  careful  discrimination  in  the  reading  of  them;  and 
the  offense  charged  was  murder,  committed  by  the  explosion  of  a 
bomb  which  it  was  conceded  none  of  the  defendants  threw.  It  is 
hardly  possible  that  the  jury  could  have  read  the  instructions  at  all, 
certainly  they  could  not  have  compared  them  with  the  testimony. 
They  could  hardly  have  read  the  indictment  in  three  hours,  and 
they  could  not  have  reconciled  its  contradictory  counts  in  three 
years.  They  certainly  never  attempted  to  separate  the  evidence 
against  one  from  the  evidence  against  the  others.  They  simply 
applied  the  whole  of  it  to  each  of  the  defendants  and  found  them 
all  guilty  of  murder  in  the  first  degree.  It  was  the  easiest  thing  to 
do,  for  their  brains  were  all  rumpled  and  disordered  by  the  mys- 
teries of  collateral  guilt  and  clairvoyant  combination  to  kill. 

Perhaps  also  the  jury  thought  that  whatever  might  be  wrong  in 
the  verdict  would  be  corrected  by  more  learned  men  than  they. 
They  had  a  right  to  think  so,  because  the  state's  attorney  had  said 
to  them  that  from  their  verdict  the   defendants  could  appeal    to 


62  THE  TRIAL  OF  THE  JUDGMENT. 

higher  authority  for  a  new  trial.  Before  the  Supreme  Court  he 
turned  another  somersault  and  begged  for  an  affirmation  of  the 
judgment  on  the  ignoble  ground  that  a  second  conviction  could  not 
be  obtained. 

ACCESSORIES    PRESUMPTIVE. 

The  theory  of  anarchy  and  the  scheme  of  socialism,  whether 
good  or  evil,  can  have  no  place  in  a  trial  for  murder  except  to  cre- 
ate prejudice  in  the  jury,  yet  the  Supreme  Court  of  Illinois  held 
that, 

Whether  or  not  the  defendants  were  anarchists  may  have  been 
a  circumstance  to  be  considered  in  connection  with  all  the  other 
circumstances  in  the  case,  with  a  view  of  showing  what  connection. 
if  any,  they  had  with  the  conspiracy,  and  what  were  their  purposes 
in  joining  it. 

But  is  this  law  ? 

Aye,  marry  is't;   crowner's  quest  law. 

It  is  the  same  fantastic  doctrine  that  was  proclaimed  in  the  Guy 
Fawkes  case  nearly  300  years  ago,  where  it  was  held  presumptive 
evidence  of  guilt  that  a  man  was  a  Roman  catholic  priest,  and 
father  confessor  to  some  of  the  conspirators.  He  must,  therefore, 
have  been  an  accessory  before  the  fact,  and  a  party  to  the  gun- 
powder plot.  It  was  mob  law  for  ages  that  every  ]e\v  -wzs  particeps 
crimiiiis  in  the  crucifixion  of  Christ,  as  an  accessory  after  the 
fact. 

In  like  manner  the  court  held  that  prejudice  against  communists 
and  socialists  would  not  disqualify  a  citizen  from  serving  on  a  jury 
to  try  a  socialist  for  murder.  Absolutely  that  is  good  law;  but  if  the 
fact  that  a  man  is  a  socialist  may  be  given  in  evidence  against  him 
on  a  trial  for  murder,  then  the  prejudice  of  the  juror  attaches  to  the 
defendant  personally,  and  the  juror  is  not  impartial.  Says  the 
court: 

The  socialist  or  communist,  if  he  attempted  to  put  into  oi)era- 
tion  his  queer  principles  of  property,  would  destroy  individual 
rights  in  property.  Practically  considered,  the  idea  of  taking  a 
man's  property  from  him  without  his  consent  for  the  purpose- of 
putting  it  into  a  common  fund  for  the  benefit  of  the  community  at 
large  involves  the  commission  of  theft  and  robbery. 


A   RFA'IF.W   ol'  ■III!-;   ANARCIII^l'  CASE. 


(>z 


That  strain  of  moralizing  sliows  the  anintiis  of  the  court.  It 
proves  that  the  judges,  like  the  jury,  were  prejudiced  against  the  de- 
fendants, antl  that  the  accused  men  couhl  not  have  an  impartial 
appeal  in  the  court  above,  nor  a  fair  trial  in  the  court  below.  If 
the  defendants  had  ''queer"  principles  of  property,  the  Supreme 
Court  had  "  queer  "  principles  of  law. 

If  the  rulings  of  the  court  in  the  anarchist  case  were  healthy 
morals  and  good  law,  why  was  the  legislature  called  upon  to  cure 
the  judgment  by  an  ex  post  facto  act  of  absolution?  If  those 
ruUngs  were  legal,  why  legalize  them  again  by  act  of  the  general 
assembly  ?  Why  transport  them  from  the  intellectual  desert  of  the 
Illinois  reports  to  the  more  fertile  region  of  the  statutes?  Why 
was  the  '•'  conspiracy  "  law  adopted  at  all,  except  as  an  underpinning 
for  the  court,  while  obsequious  lawyers  were  trying  to  lift  the  decis- 
ion up  to  grade  ?  Statute  and  decision  arealike  illegal,  hostile  to 
liberty,  savage  in  penalties,  and  beneath  the  dignity  of  the  state. 
Some  day  the  people  of  Illinois  will  call  upon  the  hills  to  fall  upon 
the  decision  in  the  anarchist  case  and  upon  the  mountains  to  cover 
the  conspiracy  law. 

A    PARALLEL    AND    CONTRAST. 

An  opinion  is  prevalent  in  Illinois  that  Parsons  was  hanged  for 
obstinacy;  that  he  defied  the  commonwealth,  and  scorned  to  beg 
for  his  life,  therefore  the  proud  state  strangled  him  in  its  rage.  It 
is  claimed  that  under  the  law  the  governor  could  not  reprieve  him 
until  he  begged  for  mercy  and  a  commutation  of  the  sentence. 
This  mistake  has  been  petted  by  the  newspapers  in  order  to  lighten 
the  guilt  of  the  November  tragedy,  and  transfer  the  sin  of  this 
man's  death  from  the  governor  to  the  victim.  The  excuse  is  false 
and  ignominious.  When  the  attorneys  and  friends  of  Parsons 
asked  for  his  life,  the  law  was  complied  with  in  the  letter  and  the 
spirit.  Whether  or  not,  even  if  Parsons,  madly  eager  for  a  martyr's 
crown,  became  a  party  to  his  own  death,  the  state  of  Illinois  had 
no  right  to  become  a  party  to  it  also. 

A  man  may  not  lawfully  commit  suicide,  neither  can  he  make  a 
present  of  his  life  to  the  state:  and  should  he  tender  the  gift,  the 
commonwealth  must  not  accept  it.  This  is  religion;  and  there 
is  law  for  it  also.  Once  upon  a  time  a  man  was  to  be  tried  in  New- 
York  for  murder,  and  through  some  accident  or  other  only  eleven 


64  THE  TRIAL  OF  THE  JUDGMENT. 

men  were  in  the  jury  box.  ''What  matter?"  said  the  prisoner. 
"  Surely  eleven  men  can  try  the  cause  as  well  as  twelve."  There- 
upon an  agreement  was  made  between  the  prisoner  and  the  state's 
attorney  that  the  case  be  tried  by  a  jury  of  eleven  men.  This 
agreement  was  entered  on  the  record  and  the  trial  began.  The  de- 
fendant was  convicted,  and  sentenced  to  death.  His  counsel  ap- 
pealed the  case  and  assigned  for  error  that  he  had  not  been  legally 
convicted,  because  his  jury  consisted  of  less  than  twelve  men.  It 
was  exultingly  answered  by  the  state's  attorney  that  the  prisoner's 
own  consent  to  be  tried  by  a  jury  of  eleven  men  was  part  of  the 
record  in  the  case.  The  court  of  appeals  replied  that  the  consent 
was  void;  that  the  prisoner  had  no  power  to  make  such  a  bargain 
with  the  state,  nor  the  state  with  him.  The  judgment  was  reversed, 
although  the  proof  of  guilt  was  clear.  The  Supreme  Court  of  Illi- 
nois would  have  said  that  the  appellant  must  show  that  he  was 
"harmed"  by  the  verdict;  but  the  New  York  tribunal  correctly  de- 
cided that  it  was  enough  to  show  that  the  jury  was  imperfect. 
The  commonwealth  of  New  York  was  too  humane  to  accept  the 
foolish  forfeit  of  a  man's  life,  and  too  great  to  foreclose  a  mortgage 
on  it,  though  freely  signed  and  sealed.  The  defiance  uttered  by 
Parsons  was  delirium.  It  ought  to  have  been  answered  by  charity, 
and  not  by  vengeance. 

When  the  vote-mongering  season  comes,  the  governor  of  Illinois, 
like  a  mechanical  phonograph,  articulates  a  stump  speech  to  an 
influential  "  element "  denouncing  the  vindictive  punishment  by 
England  of  political  offenders  in  Ireland.  The  crowd,  amusing  him 
with  cheers,  regards  him  as  a  mere  automaton,  knowing  little  of 
the  Irish  question,  and  caring  no  more  about  it  than  any  other  talk- 
in"-  machine.  Behold  a  curious  historic  parallel  and  contrast  be- 
tween the  government  of  England  and  the  government  of  Illinois. 
In  1848  Mr.  William  Smith  O'Brien,  a  member  of  the  English  parli- 
ament, organized  an  insurrection  in  Ireland,  and  actually  com- 
manded the  insurgent  forces  in  an  attack  upon  the  barracks 
occupied  by  the  police.  Although  some  of  the  police  were  killed, 
the  insurgents  were  defeated.  Mr.  O'Brien  was  tried,  convicted  and 
sentenced  to  death.  His  friends  made  intercession  for  him,  and 
begged  the  government  to  commute  his  sentence  to  imprisonment 
for  life.  Mr.  O'Brien  wrote  a  letter  to  the  secretary  of  state  repu- 
diating this  appeal  for  clemency.      He  insisted  that  it  would   be 


A  REVIEW  OF    THE  ANARCHIST  CASE. 


65 


illegal  to  commute  the  sentence  and  that  the  government  had  no 
alternative  between  hanging  and  absolute  pardon.  He  positively 
refused  to  accept  a  reprieve,  and  he  scorned  the  English  power. 
Parsons  acted  in  the  same  way.  The  government  of  Illinois  took 
him  at  his  word  and  hanged  him.  Tlie  government  of  l^ngland 
was  too  magnanimous  to  take  Smith  O'Brien  at  his  word.  His  sen- 
tence was  commuted  in  spite  of  him;  he  was  sent  to  New  South 
Wales,  where  he  was  released  on  his  parole,  and  in  a  few  years  par- 
doned. The  contrast  between  the  two  governments  in  those  par- 
allel cases  is  the  humiliation  of  Illinois,  and  the  shame  of  the  gov- 
ernor. What  is  said  about  Parsons  here  will  apply  very  nearly  to 
Engel,  Fischer  and  Spies;  and  remember  that  in  the  O'Brien  case 
the  prisoner  deliberately  marched  his  followers  to  the  police  station 
and  opened  fire  upon  the  police.  The  police  did  not  march  to  him, 
as  they  marched  up  to  the  meeting  at  the  Haymarket  and  com- 
manded it  in  a  hostile  manner  to  disperse. 

THE    LORD    LIEUTEN.\NT    AXl)    THE    MAYOR. 

A  comic  twinship  was  that  of  the  governor  and  the  mayor  making 
anti-coercion  speeches  at  Battery  "  D  "  last  May.  Moved  by  coun- 
terfeit anger,  they  condemned  force  as  an  agent  of  government — in 
Ireland — but  not  in  Illinois.  With  deep  mock  feeling  the  mayor 
exclaimed:  "Force  cannot  endure  against  the  liberty-loving  in- 
stincts of  an  earnest  and  united  people."  In  theatrical  recitation 
he  condemned  what  he  called  the  "  atrocious  bill  "  for  the  preserva- 
tion of  "  law  and  order  "  in  Ireland.  He  did  not  know  it  at  the 
time  but  his  denunciations  fell  more  justly  and  more  heavily  upon 
himself  than  upon  ""^^ord  Salisbury.  He  condemned  himself  as 
follows  : 

The  act  gives  the  lord  lieutenant  authority  to  proclaim  any 
district  and  suppress  any  association  which  he  thinks  disloyal  to  the 
government,  and  to  direct  all  in  such  district  to  be  searched,  and 
thus  effect  a  genera^  disarmament  of  the  Irish  people.  Nor  is  this 
all.  The  bill  provides  for  a  special  jury,  which,  in  this  case,  may 
mean  one  packed  for  the  government. 

In  the  practice  of  coercion  there  is  little  difference  between  the 
lord  lieutenant  of  Ireland  and  the  lord  lieutenant  of  Chicago,  as 
the  following  arbitrary  order  will  show; 


66  THE  TRIAL  OF  THE  JUDGMENT. 


Chicago.  111..  Nov.  12,  1887. 

Frederick  Ebersoht,  Stiperintendent  of  Police  : 

You  will  issue  a  permit  worded  as  follows  to  the  committee 
whose  application  is  enclosed  : 

Permission  is  hereby  given  to  the  families  and  friends  of  August 
Spies,  A.  R.  Parsons,  Adolph  Fischer,  George  Engel  and  Louis 
Lingg,  to  conduct  a  funeral  Sunday,  Nov.  13,  between  the  hours  of 
12  and  2  o'clock,  p.  m.,  on  the  following  conditions: 

The  bodies  are  to  be  taken  from  the  respective  homes  directly 
to  the  place  of  burial,  the  families  and  friends  of  deceased  forming 
a  line  on  Milwaukee  avenue,  commencing  near  Bryson  street,  and 
the  procession  moving  on  ISIilwaukee  avenue  to  Desplaines  street, 
Desplaines  to  Lake  street,  Lake  to  Fifth  avenue,  and  Fifth  avenue 
to  the  depot  of  the  Wisconsin  Central  Railway  company  at  Polk 
street. 

The  carrying  or  displaying  of  banners  is  prohibited,  no  speeches 
are  to  be  made  and  no  concealed  weapons  or  arms  shall  be  carried 
in  the  procession;  nor  shall  any  demonstration  of  a  public  character 
be  made  except  to  conduct  the  funeral  in  a  quiet  and  orderly  man- 
ner.    The  music,  if  any,  to  be  dirges  only. 

This  permit  is  issued  subject  to  the  statute  law  of  the  state  of 
Illinois  and  the  laws  and  ordinances  of  the  city  of  Chicago,  and  the 
procession  will  be  at  all  times  subject  to  police  regulations. 

John  A.  Roche,  Mayor. 

It  might  be  difficult  to  prove  that  this  harsh  proclamation  was  in 
accordance  with  the  statute  law  of  Illinois,  and  the  laws  and  ordi- 
nances of  Chicago;  but  if  it  was,  the  fact  would  only  show  that  the 
proposed  coercion  law  for  Ireland  which  the  mayor'  so  dramatically 
stigmatised  in  May,  was  at  that  very  time  the  law  of  the  state  of 
Illinois  and  the  city  of  Chicago.  The  mayor  "proclaimed"  certain 
streets  of  the  city,  and  he  forbade  the  carrying  of  banners.  He 
"  disarmed  "  the  people  and  prohibited  speeches.  Like  a  French 
emperor  he  proscribed  certain  hymns  and  songs,  which  the  lord 
lieutenant  of  Ireland  would  hardly  dare  to  do.  The  mayor  of 
Chicago  pretended  to  be  sensitive  that  the  lord  lieutenant  of  Ire- 
land should  be  empowered  to  suppress  associations  which  he 
thought  were  disloyal  to  the  government,  and  to  direct  searches  to 
be  made  in  the  proclaimed  districts.  Has  not  the  mayor  of 
Chicago  done  those  very  same  things  ?  Has  he  not  suppressed 
associations  ?  And  has  he  not,  through  his  police,  searched  houses 
without  any  lawful  warrant  whatever  ?  As  for  the  "special  jury" 
wickedness,  what  sort  of  a  jury  did  the  anarchists  have  ?  Was  not 
that  a  s])ccial  jury  ?     And  was  it  not  ])acked  for  the  government? 


A  REVIEW  OK  THE  ANARCIIIST  CASE.  67 


'Flic  mayor  sIkuvccI  a  '^neat  deal  of  stage  grief  over  the  '"  rackrent- 
ing  "  in  Ireland,  forgetting  that  there  is  more  rackrenting  done  in 
Chicago  in  six  months  than  is  done  in  Ireland  in  six:  years.  Such 
leases  as  are  every  day  enforced  by  scores  in  Illinois,  the  British 
government  would  not  allow  to  be  enforced  in  Ireland.  There  arc 
more  "  rackrenting "  e\ictions  e\'ery  \'ear  in  Illinois,  yes,  more  of 
them  in  the  single  mayoralty  of  Chicago,  than  in  the  whole  king- 
dom  of   Ireland,   for  the   same   period   of  time. 

THF,    AI  r-IDAVll'    (11'    OTIS     FAVOR. 

Here  is  the  aftidavit  of  Otis  Favor,  as  it  was  presented  to  the 
governor  on  the  9th  day  of  November,  1887.  It  remains  uncontra- 
dicted : 

State  of  Illinois,       I 

Cook  Cotntv.  \  ^^' 
Otis  S.  Favor,  being  duly  sworn  on  oath,  says  that  he  is  a  citizen 
of  the  United  States  and  of  the  state  of  Illinois,  residing  in  Chi- 
cago, and  a  merchant  doing  business  at  Nos.  6  and  8  Wabash  avenue, 
in  the  city  of  Chicago,  in  said  county.  That  he  is  very  well  ac- 
quainted with  Henry  I>.  Ryce,  of  Cook  county,  Illinois,  who  acted 
as  a  special  bailiff  in  summoning  jurors  in  the  case  of  The  People, 
etc.,  vs.  Spies  et  al.,  indictment  for  murder,  tried  in  the  Criminal 
Court  of  Cook  county  in  the  summer  of  1886.  That  afifiant  was 
himself  summoned  by  said  Ryce  for  a  juror  in  said  cause,  but  was 
challenged  and  excused  therein  because  of  his  prejudice.  That  on 
several  occasions  in  conversation  between  affiant  and  said  Ryce 
touching  the  summoning  of  the  jurors  by  said  Ryce,  and  while  said 
Ryce  was  so  acting  as  special  bailiff  as  aforesaid,  said  Ryce  said 
to  this  affiant  and  to  other  persons  in  affiant's  presence,  in  substance 
and  effect  as  follows,  to-wit :  "  I  "  (meaning  said  Ryce)  "  am  man- 
aging this  case  "  (meaning  this  case  against  Spies  etal.),  "  and  know 
w^hat  I  am  about.  Those  fellows  "  (meaning  the  defendants.  Spies, 
et  al. ),  "  are  going  to  be  hanged  as  certain  as  death.  I  am  calling  such 
men  as  the  defendants  will  have  to  challenge  peremptorily  and 
waste  their  time  and  challenges.  Then  they  will  have  to  take  such 
men  as  the  prosecution  wants."  That  affiant  has  been  very  reluc- 
tant to  make  any  affidavit  in  this  case,  having  no  sympathy  with 
anarchy  nor  relationship  to  or  personal  interest  in  the  defendants  or 
any  of  them,  and  not  being  a  socialist,  communist,  or  anarchist; 
but  affiant  has  an  interest  as  a  citizen  in  the  due  administration  of 
the  law,  and  that  no  injustice  should  be  done  under  judicial  pro- 
cedure, and  believes  that  jurors  should  not  be  selected  with  refer- 
ence to  their  known  views  or  i)rejudice.  Affiant  further  says  that 
his  personal  relations  with  said   Ryce   were  at  said    time,  and   for 


68  THE  TRIAL  OK  THE  JUDliMEXT. 


many  years  theretofore  had  been  most  friendly  and  even  intimate, 
and  that  affiant  is  not  prompted  by  any  ill  will  toward  anyone  in 
making  this  affidavit,  but  solely  by  a  sense  of  duty  and  a  conviction 
of  what  is  due  to  justice. 

Affiant  further  says  that  about  the  beginning  of  October,  1886, 
when  the  motion  for  a  new  trial  was  being  argued  in  said  cases  be- 
fore Judge  Gary,  and  when,  as  he  was  informed,  application  was 
made  before  Judge  Gary  for  leave  to  examine  affiant  in  open  court 
touching  thematters  abovestated,  this  affiant  wentupon  request  from 
State's  Attorney  Grinnell  to  his  office  during  the  noon  recess  of  the 
court,  and  there  held  an  interview  with  said  Grinnell,  Mr.  Ingham, 
and  said  Ryce,  in  the  presence  of  several  other  persons,  including 
some  police  officers,  where  affiant  repeated  substantially  thematters 
above  stated,  and  the  said  Ryce  did  not  deny  affiant's  statements, 
and  affiant  said  he  would  have  to  testify  thereto  if  summoned 
as  a  witness,  but  had  refused  to  make  an  affidavit  thereto,  <?/;(/ rt'^"^?/;/ 
7vas  then  and  there  asked  and  iir^^ed  to  persist  in  his  refusal  and  to 
fnake  no  affidavit.     And  further  affiant  saith  not. 

Otis  S.  Favor. 
Subscribed  and  sworn  to  before  me  this  7th  day  of  November, 
A.  D.,  1887.  Julius  Stern, 

Notary  Public  in  and  for  said  county. 

The  significance  of  the  above  statement  lies  in  the  latter  part  of 
it,  where  after  giving  his  reasons  for  declining  to  appear  in  court 
during  the  argument  of  the  motion  for  a  new  trial,  and  his  reasons 
for  refusing  to  make  an  affidavit  at  that  time,  Mr.  Favor  says  that 
he  went  to  Mr.  Grinnell's  office  at  the  request  of  Mr.  Grinnell,  and 
was  "asked  and  urged  to  persist  in  his  refusal,  and  to  make  no  affi- 
davit." This,  in  the  presence  of  Mr.  Grinnell,  Mr.  Ingham,  his  as- 
sistant in  the  prosecution,  and  Mr.  Ryce,  the  bailiff  who  summoned 
the  jury.  This  is  evidence  that  the  state's  attorney  adopted  and 
endorsed  the  illegal  action  of  the  bailiff.  It  is  evidence  that  the 
prosecuting  attorneys  were  accessories  after  the  fact  to  the  suspicious 
making  of  the  jury;  and  it  raises  a  presumption  that  they  were  ac- 
cessories before  the  fact  also.  On  weaker  testimony  men  were 
hanged  as  accessories  to  the  throwing  of  the  bomb. 

FREE    SPEECH    AND    CONSEQUENTIAL    MURDER. 

The  crime  of  consequential  murder  constructed  out  of  turbulent 
rant  and  political  bombast  is  out  of  harmony  with  American  law.  The 
genius  of  it  is  a  vicious  and  dangerous  principle  expelled  from  Eng- 
land many  years    ago.     Let  it  ])revail  in  America,  and  liberty  of 


A  REVIEW  OF  THE  ANARCHIST  CASE. 


69 


speech  is  gone.  No  man  will  dare  to  advocate  a  change  in  the  law 
lest  a  policeman  be  killed  in  a  riot,  and  some  law-spider  sjMn  a 
thread  connecting  the  riot  with  the  speech.  According  to  the  Illi- 
nois doctrine,  a  thousand  citizens  of  Chicago  might  have  been  in- 
cluded in  the  anarchist  indictment  and  all  of  them  found  guilty.  At 
the  great  eight-hour  meeting  held  at  Battery  D,  a  few  days  before 
the  bomb  throwing,  at  which  meeting  it  is  claimed  25,000  working- 
men  were  present,  the  most  impassioned  and  the  most  inflammable 
speech  was  made  by  a  Baptist  clergyman  of  great  prominence  in 
the  city.  No  other  speech  that  night  excited  the  multitude  to  such 
frenzy  as  the  stimulant  administered  by  that  clergyman.  Who  shall 
dare  to  say  what  influence  it  had  in  maddening  the  savage  who  threw 
the  bomb  ?  Had  this  minister  been  included  in  the  multifarious  in- 
dictment, he  must  have  been  convicted  under  the  rulings  of  the 
court.  This,  although  any  person  who  heard  him  could  see  that  while 
he  aroused  the  passions  of  the  crowd  by  eloquent  expressions  of 
sympathy,  his  desire  was  to  direct  their  minds  away  from  violent 
plans  of  change  to  moral  and  religious  methods  of  reform. 

A  free  people  who  elect  their  own  magistrates  at  stated  intervals 
are  exposed  to  periodical  returns  of  political  excitement.  In  these 
periods  the  advocates  of  change  are  necessarily  violent  in  their  ora- 
tory; but  their  criticisms  are  not  taken  literally  as  menaces  to  par- 
ticular men  or  classes  of  men,  even  though  fools  inflamed  by 
the  speeches  commit  violence.  In  the  last  congress,  a  member  of 
the  house  of  representatives  from  Chicago  denounced  a  pri- 
vate citizen  by  name,  and  advised  that  he  be  hanged.  A  few  Sun- 
days ago,  a  Chicago  clergyman,  incensed  because  a  parishioner  had 
been  shot  down  in  the  street,  suggested  a  lamp-post  for  the  assassin. 
In  like  manner  a  Chicago  paper,  the  most  irrational  in  its  appeal 
for  vengeance  on  the  anarchists,  commenting  on  a  railroad  accident 
which  had  resulted  from  carelessness,  recommended  the  summary 
hanging  of  the  railroad  officers.  Suppose  that  the  advice  of  the 
congressman,  the  editor  and  the  clergyman  had  been  followed,  then 
under  the  Illinois  doctrine,  those  men  would  all  be  guilty  of  con- 
structive murder,  and  liable  to  the  punishment  of  death.  The  whole 
principle  is  without  any  sense  or  moral  vitality.  It  grins  on  the 
Supreme  bench  like  the  skull  of  a  dead  man.  In  the  name  of  jus- 
tice let  it  be  taken  out  and  buried. 

Shortly  before  the  Haymarket  affair,  the  chaplain  of   the   house 


70  THE  TRIAL  OF  THE  JUDGMENT. 

of  representatives  prayed  before  congress  like  an  angry  prophet, 
and  invoked  the  vengeance  of  the  Lord  upon  a  people  guilty  of  so- 
cial inequality  and  wrong.  Like  a  prophet  he  seemed  to  have 
a  vision  of  the  coming  4th  of  May.  It  was  not  Nineveh  he 
was  threatening  or  bewailing,  but  the  United  States  of  America 
rushing  madly  into  what  he  called  "  a  reign  of  terror."  He  ap- 
peared grateful  for  the  newly-discovered  agent  which  was  to  equal- 
ize conditions,  and  "lighted  the  fuse  "  in  the  following  style  : 

For  long  the  few  have  mastered  the  many,  because  they  under- 
stood the  open  secret,  the  tools  to  those  who  can  use  them;  now 
the  many  have  learned  the  secret  of  organization,  drill  and  dxuaniitc. 

The  anarchist  prayer  was  official;  it  was  paid  for  out  of  the  pub- 
lic treasury  and  offered  up  in  the  capitol.  Does  that  make  the 
congress  that  heard  the  prayer  and  paid  for  it  an  anarchist  associa- 
tion ?  If  not,  why  not  ?  Does  the  prayer  itself  make  the  Rev.  Mr. 
Milburn  legally  or  morally  responsible  for  the  Haymarket  riot  ?  Cer- 
tainly not,  and  yet,  if  he  had  made  the  prayer  in  Chicago  he  could 
have  been  hanged  for  it.  He  might  have  been  hanged  for 
it  anyhow  if  Mr.  Grinnell  had  given  the  matter  a  thought, 
for  if  Spies  could  be  put  to  death  for  what  he  said  in 
Michigan,  it  was  inexcusable  carelessness  on  the  part  of  Mr.  Grin- 
nell not  to  hang  Mr.  Milburn  for  what  he  said  at  Washington.  Not 
only  was  Mr.  Milburn  not  hanged  for  praying  in  behalf  of  dynamite, 
he  was  actually  rewarded  for  it.  He  was  re-elected  to  his  com- 
fortable office,  and  is  chaplain  of  the  house  of  representatives  to-day. 

JEFFERSON    AND    P.\RSONS. 

Had  the  Illinois  rulings  been  good  law  in  Jefferson's  time,  he 
might  have  been  hanged  at  any  period  of  his  active  political  career. 
He  was  an  anarchist;  not  an  amateur  speculative  anarchist,  but  a 
physical  force  anarchist,  and  an  avowed  enemy  of  government. 
His  biographers  have  tried  to  explain  away  the  "  no  government  " 
theory  of  Jefferson,  but  that  he  cherished  and  advocated  the  theory 
cannot  be  denied.  The  following  quotation  is  not  from  the  Arbritcr 
Zci/ieng  nor  the  Alarm  ;  it  is  from  Jefferson's  letter  excusing  the 
Massachusetts  rebellion;  not  the  rebellion  against  Great  Britain, 
but  the  rebellion  against  the  LTnited  States: 

God  forbid  we  should  ever  be  twenty  years  without  such  a 
rebellion.     *     *     *     What  country  can  preserve  its   liberties   if  its 


A  Ki:\ii:\\  <  )i    riii;  anakc  in 


71 


rulers  are  not  warned  from  time  to  time  that  lliis  people  preserve 
the  spirit  of  resistence  ?  Let  them  take  arms.  What  signify  a  few- 
lives  lost  in  a  centur\-  or  two?  The  tree  of  libertv  must  be  re- 
freshed from  time  to  time  b\'  the  blood  of  patriots  and  tyrants. 
It  is  its  natural  manure. 

Did  Fielden,  Parsons,  or  Spies  utter  anything  more  sanguinarv 
than  that,  or  anything  more  anarchical  than  this: 

I  am  convinced  that  those  societies  which  live  without  govern- 
ment enjoy  in  their  general  mass  an  infinitely  greater  degree  of 
happiness  than  those  w^ho  live  under  the  European  governments. 
Among  the  former,  public  opinion  is  in  the  place  of  law  restraining 
morals  as  powerfully  as  laws  ever  did  anywhere.  Societies  exist  in 
three  forms: 

1.  Without  governments. 

2.  Under  governments  wherein  ever\-  cme  has  a  just  influence. 

3.  Under  governments  of  force. 

It  is  a  problem  not  clear  in  my  mind  that  the  first  condition  is 
not  the  best. 

The  question  is  not  whether  those  opinions  were  wise  or  foolish, 
wicked  or  charitable,  but  had  Mr.  Jefferson  the  right  to  express 
them  ?  And  having  expressed  them,  could  he  have  been  hanged 
because  riots  followed  them  in  which  "the  tree  of  liberty"  was 
"  refreshed  with  the  blood  "  of  some  policeman,  or  other  agent  of 
the  government  ? 

Whether  preached  by  Jefferson  or  Parsons,  faith  in  the  efficacy 
of  blood  as  a  political  redeemer  in  America  is  a  barbarous  belief. 
In  a  country  wdiere  every  man  is  armed  with  the  ballot,  moral  force 
is  t^he  only  agent  which  will  ever  achieve  anything  that  is  worthy  to 
be  done.  To  this  the  anarchist  agitators  reply  that  the  ballot  is  en- 
slaved in  the  hands  of  slaves.  They  say  that  the  working  men  are 
under  the  control  of  capital;  that  they  are  not  free  to  use  the  bal- 
lot; and  even  if  absolutely  free  they  are  neither  intelligent  enough. 
nor  virtuous  enough  to  use  the  ballot  well.  If  so,  is  it  possible  that 
they  can  use  wisely  or  beneficently  the  sword,  the  musket,  or  the 
bomb  ?  In  advocating  anarchy,  Jefferson  and  Parsons  may  both 
have  been  wrong,  but  the  expression  of  political  opinion  was  free 
in  Jefferson's  time,  and  it  ought  to  be  free  now. 

As  a  political  expedient  the  gallows  is  as  barbarous  as  the  bomb, 
especially  when  it  is  made  the  instrument  of  retaliation  and  re- 
venge. The  hanging  of  the  anarchists  was  the  most  criminal 
])olitical    blunder    ever    perpetrated    in    Illinois.      ^^'hen   the   state 


72  THE  TRIAL  OF  THE  JUDGMENT. 

refused  to  hang  Schwab  and  Fielden  it  gained  an  important  moral 
victory  over  them.  When  it  strangled  Spies  and  Parsons  it  suffered 
an  ignominious  defeat.  Government  and  society  are  more  afraid 
of  Spies  and  Parsons  dead,  than  of  Schwab  and  Fielden  living.  It 
is  not  wise  to  suffocate  the  law  and  drag  the  courts  down  to  the 
level  of  anarchy.  Instead  of  sending  the  American  constitution  to 
the  Pope  the  president  should  have  sent  a  copy  of  it  to  Springfield, 
Illinois. 

The  gallows  is  not  needed  in  American  politics.  It  is  a  brutal 
educator  at  its  best;  and  the  duty  of  the  hour  is  to  educate  the 
people,  not  the  working  men  alone,  but  also  their  employers,  their 
judges,  and  their  governors.  The  American  republic  does  not  fear 
debate,  nor  tremble  at  the  vibrations  of  a  song.  It  is  no  compli- 
ment to  a  great  nation  when  a  little  magistrate  proscribes  "  Annie 
Laurie  "  or  the  "  Marseillaise."  The  nobility  as  well  as  the  mob- 
ility must  be  taught  that  cruelty  and  violence  are  worthless  as 
political  or  social  remedies.  Free  debate  is  the  American  crucible 
in  which  all  our  political  theories  must  be  tried  and  purified. 
Physical  force  is  not  a  safe  reliance  for  the  rich,  nor  a  competent 
redress  for  the  poor.  The  policeman's  club  is  an  ugly  symbol  of 
our  strength.  It  has  its  uses,  but  its  moral  power  is  not  great. 
When  our  peace  and  our  possessions  rest  on  that,  and  not  on  popular 
content,  we  hold  them  by  a  tenure  uncertain  and  precarious.  We 
must  restore  to  Illinois  the  constitution  and  the  law;  and  first  of  all, 
we  must  reverse  the  judgment  in  the  anarchist  case,  where  both 
were  overthrown. 


APPEXniX.  y^ 


APPENDIX. 


Judge  Gary's  letter  to  the  governor  in  behalf  of  Schwab  and 
Fielden  : 

Chicago,  111.,  Nov.  8,  1SS7. 

To  tin-  lion.  Richard  J.  OgLsdy,  Gorenior,  c-lc. 

Sir — On  the  application  of  Samuel  Fielden  for  a  commutation 
of  his  sentence,  it  is  not  necessary  as  to  the  case  itself  that  I  should 
do  more  than  refer  to  the  decision  of  the  Supreme  Court  for  a 
history  of  his  crime. 

Outside  of  what  is  there  shown  there  is  in  the  nature  and  jjrivate 
character  of  the  man,  a  natural  love  of  justice,  an  impatience  at 
all  undeserved  suffering,  an  impulsive  temper,  and  an  intense  love 
of  and  thirst  for  the  applause  of  his  hearers  made  him  an  advocate 
of  force  as  a  heroic  remedy  for  the  hardship  that  the  poor  endure. 
In  his  own  private  life  he  was  the  honest,  industrious  and  peaceable 
laboring  man. 

In  what  he  said  in  court  before  sentence  he  was  respectful  and 
decorous.  His  language  and  conduct  since  have  been  irreproach- 
able. As  there  is  no  evidence  that  he  knew  of  any  preparation  to 
do  the  specific  act  of  throwing  the  bomb  that  killed  Degan,  he 
does  not  understand  even  now  that  general  advice  to  large  masses 
to  do  violence  makes  him  res]ionsible  for  the  violence  done  by 
reason  of  that  advice,  nor  that  being  joined  by  others  in  an  effort 
to  subvert  law  and  order  by  force  makes  him  responsible  for  the 
acts  of  those  others  tending  to  make  that  effort  effectual. 

In  short,  he  w^as  more  a  misguided  enthusiast  than  a  criminal, 
conscious  of  the  horrible  nature  and  effect  of  his  teachings,  and  of 
his  responsibility  therefor.  What  shall  be  done  in  his  case  is  partly 
a  question  of  humanity  and  partly  a  question  of  state  policy,  upon 
which  it  seems  to  me  action  on  the  part  of  your  excellency  favor- 
able to  him  is  justifiable. 

I  attach  this  to  a  copy  of  his  petition  to  your  excellency,  and 
refer  to  that  for  what  he  says  of  the  change  that  has  come  upon 
himself.  Respectfully,  yours,  etc.,  Joseph  E.  Gary. 

Mr.  Grinnell's  letter  to  the  governor. 

C'hicago,  111.,  Nov.  8,  1887. 

Hon.  Richard  J.  Oglesby,  Governor,  oU. 

Sir — While  endorsing  and  approving  the  foregoing  statement 
and  recommendation  by  Judge  Gary,  I  wish  to  add  thereto  the 
suggestion,  upon  application  of  Mr.  Foster,   one  of  the  attorneys 


APPEXDTX. 


who  appeared  for  the  defendants  upon  the  trial  of  said  cause,  that 
Schwab's  conduct  during  the  trial  and  when  addressing  the  court 
before  sentence,  like  Fielden's,  was  decorous,  respectful  to  the  law, 
and  commendable.  I  feel  that  you  should  know  this  fact,  which 
exists  alone  as  to  these  two — Schwab  and  Fielden. 

It  is  my  further  desire  to  say  that  I  believe  that  Schwab  was  the 
pliant,  weak  tool  of  a  stronger  will  and  more  designing  person. 
Schwab  seems  to  be  friendless. 

At  this  date  no  other  application  has  been  made  to  me,  and  if 
made  I  have  no  further  suggestions  or  recommendations  to  offer. 

As  to  the  two  above  named,  I  do  not  feel  like  putting  any  ob- 
stacle in  the  way  of  a  commutation  of  their  sentence  to  imprison- 
ment for  life,  although  I  should  ha\-e  preferred  to  have  receivetl 
from  Schwab  a  statement  similar  in  character  to  that  from  Fielden, 
which  is  a  great  factor  in  his  favor,  in  mv  opinion. 

Resi)ectfully  yours,  etc.,  Julius  S.  Grinnell, 

State's  Attorney. 

Judge  Tuthill's  letter  to  the  governor. 

Mr.  Ingham,  who  assisted  in  the  prosecution,  added  a  word  of 
approval,  and  Judge  Tuthill  wrote  the  following  : 

In  view  of  the  above  statements  of  Judges  Gary  and  Grinnell 
and  Mr.  Ingham,  touching  Fielden  and  Schwab,  and  as  well  in  con- 
sideration of  what  I  myself  know  of  the  facts  of  the  case  as  affect- 
ing these  two  men,  I  sincerely  recommend  and  hope  that  executive 
clemency  may  be  extended  to  each  of  these  men. 

Richard  S.  Tuthill. 

Note. — It  is  important  that  Judge  Tuthill's  letter  be  studied  and 
understood.  His  appeal  is  based  not  alone  on  the  statements  of 
Judges  Gary  and  Grinnell  and  Mr.  Ingham,  but  also  on  what  he 
himself  knew  of  "  tlic  faits  in  tJic  case  as  aifecting  those  two  men," 
Schw^ab  and  Fielden.  It  makes  one  shudder  to  think  how  close 
those  two  men  came  to  the  gallows,  without  a  sign  from  Judge  Tut- 
hill that  he  knew  of  any  ^^ facts  in  the  case  "  favorable  to  them.  He 
kept  silent  until  within  three  days  of  the  time  appointed  for  their 
e.xecution.  His  testimony  came  late,  but  it  will  ever  be  a  comfort 
to  Judge  Tuthill  and  his  children,  that  it  came  at  last,  and  helped 
to  arrest  the  illegal  sentence  against  Fielden  and  Schwab.  It  would 
have  been  a  greater  comfort  still  had  he  expanded  his  plea  for 
mercy  so  far  as  to  include  all  the  men  condemned,  even  though  he 
may  not  have  known  any  facts  favorable  to  any  of  them  except 
Fielden  and  Schwab.  M.   M.   T. 


BIOGRAPHICAL 


As  llic  aiulu)i-c)f  ihis  pain[)hlel  lias  aUaiuL-d  a  good  deal  of  popularity  ami  un- 
popularity by  his  criticisms  of  the  anarchist  trial,  and  his  efforts  to  obtain  a  miti 
gation  of  the  sentence  passed  upon  liie  unfortunate  men,  the  following  sketch  of 
him  is  presented  here. 

Gen.  M.  iM.  Trumbull  is  an  Englishman,  born  in  London.  He  is  6i  years  of 
age,  and  .1  lawyer  by  profession.  At  the  age  of  20  he  came  to  the  United  Stales, 
and  served  with  the  American  army  during  the  war  with  Mexico.  After  the  war 
he  resided  in  Virginia,  but  being  strongly  opposed  to  slavery  his  position  in  Vir- 
ginia was  not  comfortable,  so  he  left  that  state  in  1853  and  settled  in  Iowa.  He 
engaged  in  the  practice  of  the  law,  and  was  a  very  active  republican  in  politics, 
lie  w  as  a  member  of  the  first  Iowa  legislature  that  met  at  Des  Moines,  in  January, 
1858.  In  this  legislature  were  several  men  who  afterwards  became  prominent  in 
our  national  affairs:  Belknap  and  jNlcCrary,  both  fr(jm  the  same  county,  each  of 
whom  was  afterwards  secretary  of  war.  Kirkwood,  afterwards  governor,  United  States 
senator  and  member  of  Garfield's  cabinet.  Carpenter,  governor  and  member  of- 
congress.  Wilson,  present  Unite:!  States  senator;  and  many  others  of  distinction 
in  politics  and  war. 

Gen.  Trumbull  was  one  of  the  thirst  volunteers  from  Iowa  at  the  outbreak  of  the 
war  and  was  appointed  captain  of  Company  I,  3d  Iowa  Infantry.  In  August,  1862, 
he  was  promoted  lieutenant  colonel  of  the  regiment,  and  in  November  of  that  year 
he  was  discharged  for  disability  arising  from  injuries  received  in  l)attle.  On  his 
recovery  he  was  appointed  colonel  of  the  9th  Iowa  Cavalry,  and  afterwards  briga- 
dier general.     He  was  mustered  out  in  February,  1866. 

In  the  fall  of  1866  Gen.  Trumbull  was  elected  district  attorney  of  the  9th  jutlic- 
ial  district  of  Iowa,  comprising  the  counties  of  Dubuque,  Delaware,  Buchanan, 
Blackhawk  and  Grundy.  He  served  for  about  three  years  and  then  resigned  to 
accept  the  appointment  of  collector  of  internal  revenue  for  the  3d  congressional 
district  of  Iowa.  This  office  was  tendered  him  by  President  Grant,  without  any 
solicitation  whatever  on  the  part  of  (ien.  Trumbull.  Having  held  the  office  of 
collector  for  eight  years,  he  resigned  and  visited  his  home  in  England,  which  he 
had  not  seen  for  more  than  thirtv  vears.  For  the  jiast  six  years  he  has  resided 
in  Chicago. 

Gen.  Trumbull's  writings  in  the  English  and  American  magazines  have 
attracted  a  good  deal  of  attention,  especially  those  on  economic  anil  social  ques- 
tions. Although  a  very  active  republican.  Gen.  Trumbull  is  an  ardent  free-trader, 
and  his  "History  of  the  Free  Trade  Struggle  in  England"  has  had  very  great  pop- 
ularity. His  article  on  "American  Aristocracy"  published  in  The  xVineteenth 
Century  was  very  much  discussed  in  England,  and  also  in  the  United  States. 

Gen.  Trumbull  has  always  been  a  strong  opponent  of  the  methods  and  prin- 
ciples of  the  people  known  as  anarchists,  and  especially  of  their  theory  of  reform 
by  physical  violence.  On  this  question  he  has  had  many  public  and  private  con 
troversies  with  Fielden,  Spies  and  Parsons.  His  doctrine  is  that  no  change  for  the 
better  is  possible  except  through  moral  forces.  He  is  a  strenuous  advocate  of  "Law 
and  Order,"  and  he  holds  that  the  rich  as  well  as  the  poor  shoidd  be  compelled  to 
respect  the  constitution  and  the  law.  He  maintains  that  all  the  people,  from  the 
highest  to  the  lowest  in  rank,  wealth  or  station,  shall  be  equally  under  the  protec 
tion  and  correction  of  the  law.  He  believes  that  judges  and  magistrates  who 
\  iolate  the  law,  especially  in  their  official  capacity,  are  more  guilty  than  delin- 
quents of  inferior  degree. 


KF 


^-^, 


